Family Division has no authority to award visitation or joint custody. Welfare of the animal must be considered in final disposition.

Hament v. Baker 2014 VT 39 (25-Apr-2014)

CRAWFORD, J. The only issue in this contested divorce was which spouse should receive the family dog. Belle is an eleven-year-old German wirehaired pointer who is greatly loved by husband and wife. The parties have no minor children, and they were able to reach an agreement on the division of their property and other financial issues. They came to the final hearing for a ruling on which one of them would receive the dog in the divorce decree.

On appeal, wife claims that the court erred in refusing to consider allocating the dog to both spouses in a joint arrangement. She also argues that the court failed to enforce the parties’ temporary agreement to share their time with the dog. We affirm the family court decision on two grounds. The factors identified and considered by the court in allocating the dog were appropriate. The court was also correct in its statement that the family division cannot enforce a visitation or shared custody order for animals.

We hold first that the allocation of a pet in a divorce is subject to 15 V.S.A. § 751. In contrast to a child, a pet is not subject to a custody award following a determination of its best interests. Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is final and generally not subject to modification.

This Court has consistently ruled that pet animals are property. Scheele v. Dustin, 2010 VT 45, ¶ 8, 188 Vt. 36, 998 A.2d 967; see also Goodby v. Vetpharm, Inc., 2009 VT 52, ¶ 7, 186 Vt. 63, 974 A.2d 1269 (holding that no tort recovery allowed for emotional damages following loss of pet). But pets are different from other property. They are alive and form emotional attachments with their owners that run in both directions. Their long and intimate association with people gives rise to special concerns for their well-being and humane treatment. See, e.g., Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (noting that value of most pets is primarily emotional rather than financial). Morgan recognized the emotional value of a dogs well as the value our society places on the humane treatment of animals. The dog in that case remained “property,” but his disposition was governed by concerns for animal welfare. Id. at 104-05, 702 A.2d at 634.

We hold that the family division may consider the welfare of the animal and the emotional connection between the animal and each spouse. Evidence concerning welfare of the animal includes evidence about its daily routine, comfort, and care. Evidence concerning the emotional connection may include testimony about the role of the animal in the lives of the spouses. In this case, the parties were afforded an opportunity to put on evidence regarding both factors without restriction. While the family court could consider both welfare and emotional ties in awarding the dog to one of the parties, it had discretion to decide what weight to give to these factors.

The court’s specific findings about Belle and her owners are supported by the evidence. The factors the court considered—the dog’s welfare and its emotional relationship with the parties—are the same factors that we recognize today as appropriate for the resolution of similar questions in the future. Accordingly, we affirm the court’s decision to assign ownership of the dog to husband.

Finally, we disagree with wife’s contention that the court had authority to impose an enforceable visitation order for the dog. Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal. Accordingly, we agree with the court below that even if submitted by stipulation, an agreement to share custody of the family dog or other pet would be unenforceable in the family division. The enforcement of such agreements falls outside of the jurisdiction of the family division over the distribution of marital property.


Affirmed.