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Appeals Court Reverses Dog Visitation in Washington Divorce Decree

Many people consider their pets to be part of the family, but the law often treats pets as personal property.  In a recent case, a husband challenged court-ordered visitation with the dogs awarded to him in his divorce decree.

The parties, who had been married for about 27 years, had two dogs at the time of the divorce. They referred to the dogs as “[t]he babies” and regularly texted about them. When the wife moved out into a motor home, the dogs remained in the marital home with the husband.  The wife visited them several times a week.

The husband petitioned for legal separation at the end of August, 2018. In her answer, the wife asked the court to dissolve the marriage and requested at least 10 hours per week visitation with the dogs and the right of first refusal for their care.  She also asked that the parties split costs for the dogs. The commissioner’s temporary orders only ordered the wife to pay half of the dogs’ grooming and veterinary bills, but otherwise did not address the dogs.  She kept visiting them several times per week.

The trial occurred in October 2019.  The wife continued to express her desire to keep “continued access” to the dogs. She asked that visitation be included in the final orders.  She said she was concerned the husband would not let her see them without being ordered to do so. She asked the court to award each of them legal ownership of one of the dogs but to allow her to care for the husband’s dog if he was not able to do so.

The husband argued the dogs were a “bonded pair” and asked the court not to separate him.  He argued the motor home was too small for the dogs and asked the court to award him ownership of both.  He suggested he would allow the wife informal access to them without a court order.

The final decree awarded both dogs to the husband as his separate property but ordered a visitation schedule of three hours three times a week. Additionally, the decree allocated 75% of veterinary and grooming expenses to the husband and 25% to the wife.

The husband moved for reconsideration, arguing the visitation schedule was “oppressive” and effectively made them joint owners of the dogs.  He argued he would let the wife visit the dogs, but should not be required to do so on a “set-in-stone schedule.” The trial court denied the motion to reconsider, finding the dogs were “distinct from a standard award of personal property.” The court further found the order “did not require continued joint ownership.”

The husband appealed, arguing the court abused its discretion in granting the wife visitation of his separate property.  The wife argued the court had discretion to allow her visitation under RCW 26.09.080.  She argued alternatively that common law requires pets to be in a special classification that is greater than standard personal property and allows court-ordered visitation.

The wife argued the trial court had properly considered the “nature and extent” of the dogs.  She argued the order was a “just and equitable” disposition of the dogs pursuant to RCW 26.09.080 given their “unique status.”

In making its disposition, the trial court must consider the relevant factors, including the nature and extent of the community property and of the separate property. RCW 26.09.080. The record reflected that the court had considered the factors, recognized the dogs were community property, and found it was just and equitable to give them to the husband as separate property. The appeals court found, however, that the statute did not allow the court to compel a party to make their separate property available for the other party’s use and enjoyment.

The appeals court also rejected the wife’s common law argument.  The appeals court noted that “Washington common law has not recognized animals as a special category of property.” Washington courts have instead characterized pets and other animals as personal property.  The appeals court found RCW 26.09.080 adequately provides for the distribution of personal property and does not include any specific provisions related to pets or otherwise provide for pet visitation.

Furthermore, the appeals court found that court-ordered pet visitation would be contrary to the general requirement that property distributions in divorces should be final pursuant to RCW 4.04.010. Pet visitation would result in ongoing enforcement and supervision issues. Both parties in this case expressed concerns regarding further court involvement as a result of the visitation.

The appeals court therefore found the trial court erred in ordering the visitation and reversed and remanded the case to the trial court to strike the visitation and shared maintenance provisions of the decree.

This case shows that pets will generally be treated as property in a divorce. A party wanting continued access to an animal should consider requesting the animal be awarded to them as their separate property. If you have pets with your spouse and are facing a divorce, a skilled Washington divorce attorney can help you.  Call Blair & Kim, PLLC, at (206) 622-6562 to schedule your consultation.

 

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