Pets and Divorce

The New York Times published an interesting article about the fate of pets in divorce proceedings, Following Alaska's recent enactment of a statute guiding the custody of pets in divorce, Rhode Island now has pending legislation requiring the court to  “consider the best interest of the animal” in a divorce or separation. See: https://nyti.ms/2nGCQm7

Alaska requires the well being of the pet to be considered in divorce

Washington Post reports that Alaska has become the first state to require courts to take into consideration the well being of the animal in divorce.  Judges now have the power to award joint custody.  This is truly ground breaking because all other states treat animals in the same way furniture is treated, and pets are simply part of the property distribution.  We hope more states follow suit. 

Appeals Court Affirms Award of Veterinary Expenses for Injured Dog, but Extends Prohibition of Emotional Distress Damages.

The appeals court affirmed a lower court award of veterinary expenses to owners trying to save their small dog after an unprovoked attack by an unleashed German shepherd.  The Bichon Frisé had severe internal injuries and external wounds requiring emergency surgery to the tune of $8,000. In addition to vet costs, the court also awarded the replacement value of the dog. Because Massachusetts law considers dog personal property, the owner of the German shepherd argued that damages should be capped at the market value of the dog, regardless of the reasonableness of the veterinary costs necessary to treat the dog's injuries. See Irwin v. Degtiarov. The appeals court found that reasonable veterinary costs can be recovered even if they exceed the market value or replacement cost of an animal injured by a dog. Whether particular veterinary costs are reasonable, and whether it is reasonable to incur them, will depend on the facts of each case.  Among the factors to be considered are the type of animal involved, the severity of its injuries, the purchase and/or replacement price of the animal, its age and special traits or skills, its income-earning potential, whether it was maintained as part of the owner's household, the likelihood of success of the medical procedures employed, and whether the medical procedures involved are typical and customary to treat the injuries at issue. Once again, the appeals court affirmed that although the owner's affection for the animal may be considered in assessing the reasonableness of the decision to treat the animal, the owner cannot recover for his or her own emotional distress. Nor is the owner entitled to recover for the loss of the animal's companionship. An earlier appeals court case stated that emotional distress damages were not available because in that case the owner did not witness the damage. See Krasnecky v. Meffen.  Despite not being a question in this present case, the court suggests even if an owner witnesses the attack, he or she cannot get emotional distress damages.  The Supreme Judicial Court has yet to take up this question, but this ruling seems to close the door on the possibility of emotional distress damages.

Big Win for Non Human Animals

The Massachusetts Supreme Judicial Court announced today that in an emergency the police can enter private property to protect the lives of non-human animals. The case is Commonwealth v. Duncan , SJC-11373 (April 11, 2014).  The case involves a Lynn woman who let two of her dogs freeze to death outside and fought an animal cruelty conviction by claiming the police had no right to enter her property to rescue the third, still breathing, dog.  The court found that the emergency aid exception to the requirement of a search warrant permits the police in certain circumstances "to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be [an animal] inside who is injured or in imminent danger of physical harm." It moderated that finding with the statement that "the reasonableness of the search must be determined on a case-by-case basis upon consideration of the totality of the circumstances". Massachusetts joins other states in recognizing "a public interest in the preservation of life in general and in the prevention of cruelty to animals in particular.how society values animals". Congratulations to Essex Assistant District Attorney Paul C. Wagoner who did an excellent job arguing this case before the court.

Glickman Turley LLP represents animal welfare nonprofits and others interested in animal welfare.