Who Gets The Dog? Whitmore v. Whitmore

March 6, 2011 by Heidi Meinzer 3 Comments

Scott and Barbara Whitmore got married in 2002.  They had no children, but they did adopt a Welsh Corgi puppy from a local pet store in 2006.  They paid $750 for the Corgi, Noel, and registered her with the American Kennel Club under both of their names.  Scott and Barbara both worked, and both contributed to Noel’s care, training and maintenance. 

In 2009, the Whitmores separated.  The house they had lived in was Barbara’s property prior to the marriage.  Barbara stayed in the house, and Scott moved out.  Noel stayed with Barbara for the most part, with Scott taking her on and off during the first year of separation.  Barbara believed the dog would stay with her ultimately, but Scott thought Noel would stay with Barbara during the separation, and that they would share Noel afterwards.

Barbara worked from home, but traveled for work four to six days a month.  When she was out of town, she employed a pet care service for $350 or so a month to take care of Noel.  Barbara no longer wanted to share Noel with Scott, claiming he destroyed the marriage by having an affair, and that she no longer wanted Scott in her life.

During the divorce proceedings in Loudoun County Circuit Court, Barbara argued that Scott gave her Noel as a gift.  Scott testified that he saw Noel at the pet store, and they went together to buy the dog, making the transaction a “joint purchase.”  Both Scott and Barbara testified that they loved Noel, considered her to be a family member, and shared a strong bond with her.

Barbara claimed she usually took Noel to the veterinarian, and that she visited Noel several times a day when Noel was hospitalized for five days.  Scott said he did not visit Noel when she was hospitalized, for fear of getting Noel excited while she was ill.  Barbara claimed that she paid Noel’s that $4,000 vet bill, and most of Noel’s other vet bills, except when Scott took her to the vet once or twice.  Scott testified that he paid the $4,000 bill.

Barbara argued she should be able to keep Noel.  Scott argued that he should have Noel, or that the court should award shared possession and establish a visitation schedule.  Judge Horne ruled that Virginia Code Section 20-107.3, which deals with equitable distribution of property, governed the case.  Judge Horne found that both Scott and Barbara contributed to Noel’s purchase and maintenance, and both played a significant role in Noel’s life.  But Noel stayed with Barbara, and Judge Horne felt it was “ill-advised” to set up visitation or shared custody of a “marital asset.”  Judge Horne awarded Noel to Barbara, and awarded $750 to Scott so that he could get a dog “of like kind.”

Scott appealed to the Court of Appeals, arguing that Judge Horne failed to consider and weigh all of the necessary factors – such his monetary and nonmonetary contributions in getting and maintaining Noel, and that Noel is a living , sentient being rather than an inanimate possession.

The Court of Appeals summarily affirmed the trial court in a recent unpublished opinion, agreeing that Section 20-107.3 governed.  Under that section, the court has to first determine property is marital, separate, or a hybrid.  Next, the court has to value the property.  Last, the court has to distribute the property equitably. 

The Court of Appeals had no problems with Judge Horn’s application of Section 20-107.3.  Regarding the inquiry of whether Noel should be considered marital or separate property, or a hybrid, the judges agreed with Judge Horne’s conclusion that Noel was “marital property,” based on the facts that Noel was a gift “between the parties,” was registered with the AKC in both of their names, and that both Scott and Barbara played significant roles in Noel’s life. 

Regarding valuation, the judges concluded that Judge Horne considered the necessary factors and the unique circumstances of this case.  On the record, Judge Horne struggled with placing a value on Noel, finding that Noel had a unique “intrinsic value,” and did not “in any way want to minimize the significance of a pet in a person’s life.” 

Regarding distribution, the judges found no abuse of discretion in awarding Noel to Barbara and $750 to Scott.  The Court of Appeals found no error in refusing to set up joint custody or a visitation schedule for a pet.  In fact, the judges went out of their way to cite Virginia Code Section 3.2-6585 in a footnote, to support their position that does are “personal property” under Virginia law.

Linguistically and legally, the Court of Appeals’ decision is an interesting read.  The judges go to great lengths in their delivery and vocabulary to make it clear that Noel is nothing more than property.  They refer to Noel as “the dog” throughout the entire opinion, never even using her name or even her gender.  Instead of saying the Whitmores adopted Noel, they use the word “acquired.”  Instead of saying Scott had custody of her during the separation, they say he had “possession” of her.

This isn’t the first time the Court of Appeals of Virginia was faced with a fight over who gets the dog in a divorce.  In the 2004 unpublished opinion of Conahan-Baltzelle v. Baltzelle, the Court of Appeals upheld a trial court’s application of Section 20-107.3 and decision to award the husband possession of the couple’s German Shepherd.

Obviously, Virginia is nowhere near other states like Maryland in its readiness to give companion animals a better legal position than mere property.  At least one Maryland trial court has granted shared custody of the family dog, treating the dog more like a child by weighing the best interests of the dog.  A civil case pending in Frederick County Circuit Court involving deputies shooting a family dog may give us further guidance on the legal status of companion animals in Maryland.