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Splitting Couple Awarded Joint Possession of Pet Pug
New Jersey Law Journal
September 24, 2009
Dexter the Pug
A New Jersey judge held Monday that a former couple must share possession of a six-year-old, pedigreed pug they bought for $1,500 when they were engaged and living together.
The ruling, which allows Doreen Houseman and Eric Dare to spend alternating, five-week stretches with the dog, is the aftermath of a groundbreaking appellate decision last March that pets have a subjective value that transcends their monetary costs.
In Houseman v. Dare, FM, 08-667-07, Gloucester County Superior Court Judge John Tomasello had denied Houseman's request for possession on the ground that pets, like furniture or cars, lack the unique value -- such as for heirlooms or works of art -- that is essential to specific performance.
That was wrong as a matter of law, the appeals court found, remanding the case for a look at whether Houseman had an oral agreement with Dare letting her keep the pug, called Dexter, and at the equities implicated by her request for possession.
During a July 29 hearing, Tomasello found neither party had an exclusive right to Dexter but he did not decide at that point whether to disturb Dare's sole possession. Instead, he asked for briefs and set a Sept. 21 hearing date.
At Monday's hearing, Tomasello ruled from the bench and did not issue a written opinion.
Houseman's counsel, Oradell solo Gina Calogero, says that in giving both parties equal time with Dexter, Tomasello emphasized he was awarding joint possession, not custody. "He was adamant about that," she says.
She is pleased with the five-week rotations because they will have the effect of alternating the holidays from year to year. Tomasello ordered the rotations to begin Friday, with Dare dropping off Dexter with Houseman, who has not seen him since 2007, says Calogero.
Tomasello also held that whichever party has the dog at a given time will be responsible for all expenses, including veterinarian bills and, in the event of death, the cost of cremation, she adds.
Houseman and Dare spent 13 years together, beginning in 1993. They became engaged in 2000 and after acquiring Dexter in 2003, pampered him for the next three years. They threw him parties, dressed him up in costumes and had his portrait taken by professional photographers.
The engagement ended and Houseman moved out of their home in Williamstown in July 2006, taking Dexter and his paraphernalia with her but allowing Dare to take the dog for visits.
On her return from a February 2007 vacation, Dare refused to surrender the dog, prompting her to file suit. Her complaint, filed March 16, 2007, asked for possession of Dexter and sought to resolve other issues related to the break-up.
She contended that when the couple split, Dare agreed orally that she would get Dexter and one-half the equity in the house, estimated at $45,000.
Dare's position was that he was entitled to Dexter because he paid for him and most of his food and veterinary costs through the years.
Before trial, Tomasello ruled specific performance was not available.
The December 2007 trial resulted in a $29,000 judgment for Houseman, including $1,500 for Dexter, the value stipulated by the parties.
The appeals court found that Tomasello apparently believed an oral agreement existed but left Dexter with Dare because he did not want to disturb the status quo. On remand, however, Tomasello held there was no agreement.
Although a court could decide who had a special interest in possession of a pet, "[w]e are less confident that there are judicially discoverable and manageable standards for resolving questions of possession from the perspective of a pet, at least apart from cases involving abuse or neglect contrary to public policies expressed in laws designed to protect animals," wrote Judge Jane Grall in a published opinion, joined by Stephen Skillman and Robert Graves.
The appeal drew two animal rights groups as amici.
Animal Legal Defense Fund of Cotati, Calif., advocated unsuccessfully for a best-interest-of-the-pet standard.
Toms River solo Isabelle Strauss, who represented Lawyers in Defense of Animals, suggested in the appeal that courts could ease the burden of dealing with pet custody issues with the aid of volunteers, comparable to those in the courts' Court Appointed Special Advocates, who help monitor the placement of abused and neglected children outside their homes.
The only communication between the parties Tomasello required was concerning any need for continuing medication, says Calogero. She was disappointed Tomasello spurned her suggestion to require notice in the event Dexter was hurt or ill and had to be euthanized, saying "if something happened and [Houseman] didn't know about it, she would be very upset if she was not able to be there." Tomasello did, however, express hope that whoever had the dog cremated would share the ashes, recalls Calogero.
Dare's lawyer, James Carter of Hoffman Dimuzio in Turnersville, could not be reached for comment.
