Client Compass, Divorce Law Monitor

Frequent readers of the Divorce Law Monitor may recall a previous post “We’re Divorcing – Who Keeps the Pet?” This follow-up post discusses an opinion handed down this month by the Appeals Court, which, while it likely will not affect who keeps a pet in divorce, could significantly impact determining who keeps the pet in the case of some unmarried couples who split up. The Appeals Court determined that a Superior Court judge, although she used the less-than-optimal words “shared custody” and acted within her discretion in enforcing an estranged, unmarried couple’s oral agreement to share possession of a dog.

In Lyman v. Lanser, No. 23-P-73 (March 7, 2024), Brett Lyman (“Mr. Lyman”) filed an action in the Superior Court against his former romantic partner, Sasha Lanser (“Ms. Lanser”), seeking to enforce an agreement to equally share possession of the parties’ jointly owned Pomeranian dog, Teddy Bear Lanser-Lyman (“Teddy Bear”).

Mr. Lyman and Ms. Lanser agreed when they got the dog that if they separated in the future, they would share it equally. They bought Teddy Bear and split the cost to purchase him equally, although the ownership registration only included Mr. Lyman’s name. While they were together, the parties shared responsibility for training and caring for Teddy Bear, although Mr. Lyman asserted that he had paid most of Teddy Bear’s expenses during that time. The parties split up approximately three years later, and Ms. Lanser moved out of their shared home. They “communicated regularly about [their] intended plan to share Teddy Bear on an approximately equal basis” and for around five months, and they exchanged possession of Teddy Bear several times, although Mr. Lyman’s time with him decreased because of his “conflicting family obligations.” Then, Ms. Lanser moved to a new apartment, and the parties agreed to temporarily suspend the sharing arrangement so that Teddy Bear could adjust to Ms. Lanser’s new home. Two months later, Ms. Lanser allegedly cut off all communication with Mr. Lyman and refused to allow him access to Teddy Bear.

Mr. Lyman filed an action for conversion (alleging that Ms. Lanser had taken Teddy Bear from him and converted him to her own use) and breach of contract. He sought specific performance of the parties’ agreement to share possession of Teddy Bear equally. He also moved for a preliminary injunction to restore joint ownership and possessory rights to Teddy Bear to the status quo that existed before Ms. Lanser refused him access to Teddy Bear. Mr. Lyman argued that dogs are a distinctive type of property, “living creatures with distinct personalities and [a] finite life span, clearly distinguishable from inanimate personal property.” He alleged that Ms. Lyman’s refusing access to Teddy Bear caused him irreparable harm in the loss of Teddy Bear’s companionship, which monetary damages could not remedy.

The Superior Court judge who ruled on Mr. Lyman’s motion for preliminary injunction determined that “[t]he parties each paid half of the price of the dog, expressed intent to share custody even if they separated, and acted on that agreed/shared custody” and that they had joint ownership rights to Teddy Bear. She ordered that they each have Teddy Bear for alternating two-week periods. Although a single justice of the Appeals Court vacated the Superior Court Judge’s Order, a three-judge panel of the Appeals Court then reversed that decision.

The Appeals Court held that there was no dispute that the parties jointly owed Teddy Bear, noting that domestic animals are personal property and can be held by a tenancy in common (a form of shared ownership where each party has a share in the property that they can bequeath in their will and does not pass to one party on the other party’s death as in a joint tenancy). The Appeals Court also noted that tenants in common might make agreements regarding their rights in personal property, such as the agreement between Mr. Lyman and Ms. Lanser to “share custody” of Teddy Bear even if they separated, which they then acted on for some months. The Appeals Court stated, “[w]e see no reason… why tenants in common may not make enforceable agreements regarding their rights vis-à-vis each other to possess and use their property.” Further, the fact that the agreement to share possession of Teddy Bear was oral and not in writing was not a bar to specific performance of that agreement. The Appeals Court reinstated the Superior Court’s decision that the parties should share Teddy Bear for alternating two-week periods.

The Appeals Court limited its decision in Lyman v. Lanser to disputes over domestic pets between unmarried partners based on contract principles. Its conclusion does not apply to divorcing spouses by virtue of General Laws c. 208, § 34, which permits the Probate and Family Court to “assign to either husband or wife all or any part of the estate of the other” in a divorce. This means that one spouse’s personal property, including pets, can be reassigned to the other spouse in a divorce, and concepts of contract law that apply between unmarried parties do not necessarily apply.

So, what does this mean for unmarried couples considering getting a pet together or who are splitting up and disagree about who should keep the pet?

• If you and your unmarried partner are considering getting a pet, it makes sense to come to an agreement (preferably in writing) as to what happens to the pet if you split up. Lyman v. Lanser strongly suggests that the contract will be enforceable; regardless, you should consult an experienced attorney rather than relying on verbal agreements.
• If you and your unmarried partner had an agreement (even a verbal one) that you’d share a pet equally if you split up, that agreement may be specifically enforceable on a temporary basis, meaning a Court could order you to share possession of a pet pending the ultimate resolution of a suit for breach of that agreement.

Finally, for divorcing couples, this decision probably does not change much. The Probate and Family Court cannot order “visitation” of pets, but will treat pets as personal property and, in deciding who should receive a pet in divorce, will consider factors such as who purchased the pet, who “used” the pet (took care of her, bought her food and supplies, took her to the vet, spent time with her), and potential benefits to the party retaining the pet. If you’re divorcing, take another look at “We’re Divorcing – Who Keeps the Pet?” for guidance.