Three Day Trial in Contested Canine Custody Case:

This was originally posted on the SGR Blog.

Court Determines Which Parent has Right to Sole Possession

Our Courts regularly and routinely resolve disputed claims to possession of personal property and controverted petitions for child custody. But, as a recent case illustrates, a Court may be required to adjudicate competing applications for possession/custody of a cherished canine companion.

Matthew Mundo sued Harry Weatherson to recover possession of a Chihuahua dog named Maximus. The complaint alleged that Maximus (valued at approximately $2,500) was being wrongfully detained by Weatherson because Mundo held a superior right to possession. Mundo asserted causes of action for replevin, declaratory judgment and intentional infliction of emotional distress.

In his answer to the complaint, Weatherson claimed that he was Maximus’ legal owner and therefore entitled to sole and exclusive possession. Weatherson further alleged that Mundo breached a pre-existing agreement between the parties in which they agreed to jointly share custody of Maximus in two-week intervals. And Weatherson contended that Mundo failed to state a cause of action for intentional infliction of emotional distress.

On November 30, 2020, Mundo moved by order to show cause for a preliminary injunction requiring Weatherson to return Maximus to him pending resolution of the action. In an order dated December 1, 2020, the Court directed the parties to continue the joint custody arrangement in two-week intervals pending the resolution of the action on its merits.

A bench trial was held before this Court on January 2, January 6, and January 27, 2022. At trial, both parties were represented by counsel. On February 4, 2022, the trial concluded with the submission of written trial memoranda.

Based upon the credible testimony at trial, the Court adduced the following facts:

In summer of 2016, Mundo and Weatherson were involved in a romantic relationship. Over the course of their relationship, they discussed getting a dog. Weatherson, a veterinarian, had previously owned dogs and had a preference for adopting a rescue dog as an alternative to buying one. Mundo, who had never owned a dog, was interested in getting a dog but had specific preferences for size and temperament that he believed would suit the parties’ living situation and lifestyle.

In June 2016, Weatherson was completing his veterinary internship at the Animal Medical Center when a colleague informed him that a patient’s owner, Vanessa Corchado, was concerned about her ability to care for her dog (then named Oreo) due to the costs and requirements of necessary specialized care. Weatherson was further informed that Corchado was exploring the possibility of rehoming Oreo. Oreo remained at AMC receiving care for several days. Upon Corchado’s return to AMC, Weatherson discussed with her the possibility of him taking over ownership of Oreo and Corchado agreed.

Typically, AMC protocol governing relinquished animals required the animal to stay within the hospital for a duration of time before going to a shelter, during which aspiring adopters were required to complete an application for approval to adopt. To circumvent that protocol, however, Weatherson arranged for a same-day exchange directly with Corchado. After sending photos and other information about Oreo to Mundo, Weatherson met with Corchado at a location down the street from AMC. Corchado gave Oreo over to Weatherson, and he provided Corchado with his contact information. Weatherson then contacted Mundo to arrange for him to retrieve Oreo, and Weatherson returned to work. Upon retrieving Oreo, Mundo brought Oreo to his home and rechristened him Maximus. At the time the parties did not reside together. So Maximus lived with Mundo in his home for a few weeks before Weatherson moved in.

For the most part, the parties split the various tasks associated with dog ownership. Mundo arranged for Maximus to be neutered, microchipped and ensured Maximus was caught up on vaccinations. Weatherson, in his capacity as a veterinarian, examined Maximus and provided other specialized treatment Maximus required. Weatherson also paid for food and vaccinations, for which he was able to receive a discounted rate. Mundo set up the microchip monitoring account and New York City license. Mundo also generally took responsibility for bringing Maximus to the veterinarian for routine checkups and procedures.

Both parties took Maximus to their respective workplaces on a semi-regular basis, and both parties took Maximus on walks and other activities. Mundo often brought Maximus on trips to his friends’ summer house on Fire Island, both with and without Weatherson. Elizabeth Wheaton, a close friend of Mundo, testified that Maximus was around enough that the vacation house had its own dog bed and other supplies ready for Mundo’s visits. When the couple traveled and were unable to bring Maximus along, Mundo’s friends or family served as dog sitters, guided by a detailed document drafted by Weatherson known as “Max’s Playbook.”

The parties ended their romantic relationship approximately three years later in June 2019. Mundo moved out of their shared apartment in August 2019 and Maximus remained with him while Weatherson finalized his new living arrangements. The parties then commenced a voluntary “joint custody” arrangement in which each party would have Maximus for two or three weeks at a time before bringing the dog to the other party in turn. This arrangement continued relatively amicably until January 2020. Around that time, Mundo testified, he discovered that Weatherson had been unfaithful during their relationship. On the day Mundo was scheduled to bring Maximus to Weatherson’s home, Mundo instead left Maximus at home and went to confront Weatherson about the alleged infidelity. Maximus would remain in Mundo’s care for the next six months.

In July 2020, Mundo brought Maximus to AMC for a routine checkup. Unbeknownst to Mundo, Weatherson had been notified about the upcoming appointment by staff at AMC. While Maximus was at AMC, Weatherson entered the facility through a separate entrance. When the appointment was finished, AMC released Maximus to Weatherson, who left with Maximus again through a separate exit. Mundo, who had not been permitted into the clinic area due to covid-19 restrictions, only learned about Weatherson having collected Maximus upon inquiring about the wait to staff. Mundo filed suit shortly thereafter.

Certain facts or events were disputed by the parties through conflicting testimony at trial. Mundo contended that the bulk of Maximus’ daily care fell to him: he managed the dog’s licensing; researched pet insurance, and managed his regular veterinary appointments; he walked Maximus the majority of the time and brought Maximus to his workplace on a regular basis. Mundo asserted that while Weatherson did sometimes bring Maximus to the clinic, when he did so Maximus was often confined to a kennel and was not as free to walk about as he did so at Mundo’s workplace. As corroboration, Mundo presented the testimony of Ivan Carriel, a doorman at the building where the parties resided with Maximus, Elizabeth Wheaton, his close friend, and Emma Hansen, his colleague.

Mundo maintained that Maximus was always understood to be “his” dog, both as a condition of obtaining Maximus from the dog’s previous owner and throughout his relationship with Weatherson.  But Weatherson asserted that, contrary to Mundo’s testimony, he was equally responsible for walking Maximus and other daily tasks. Weatherson also presented the testimony of Vanessa Corchado, who he asserted only relinquished Maximus upon the representation that Weatherson would be the dog’s sole owner.

Traditionally, New York Courts treated companion animals as personal property; as with other personal property, Courts resolved disputes by evaluating which party had the superior possessory right to the animal. Accordingly, the appropriate action to recover possession of a companion animal in non-matrimonial contexts was an action for in replevin.

More recently, however, Courts have recognized the myriad ways in which companion animals are much more than simple possessions. A recent appellate case acknowledged the cherished status accorded to pets in our society, the strong emotions engendered by ownership disputes and the limited ability of the Courts to resolve them satisfactorily. In doing so, the Court established that simple adherence to traditional principles of property ownership was outmoded and inappropriate where a treasured pet was involved and that a Court must also consider intangible and subjective factors invariably involved.

An applicable standard was recently developed by a Trial Court in  a matrimonial dispute. The Court examined the wide variety of approaches taken by the Courts in several jurisdictions–and ultimately concluded that a refinement of the “best for all concerned” standard applied and struck the best balance between a strict property analysis and the more extensive interests analysis involved in child custody cases.

Following the “best for all concerned” approach, the Court examined not just those factors that would weigh towards the parties’ respective possessory rights, but also intangible factors such as why each party would benefit from having the dog in his or her life and why the dog had a better chance of prospering, loving, and being loved in the care of one party or the other. Relevant facts included those that reflected each party’s ability to meet the dog’s physical and emotional needs, including financial circumstances, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary supplies, and the time required to meet the dog’s need’s on a daily basis.

Based upon the evidence adduced at trial, the Court found first that the traditional markers of ownership were non-dispositive. Maximus was obtained without payment, and the costs and tasks associated with ownership (such as vaccinations, licensing, insurance) were split between the parties. The issue of ownership might have been clearer had Maximus been properly adopted according to AMC protocol. But it was evident that both parties intended to and did benefit from circumventing the established rules to obtain Maximus more quickly and without cost.

While Weatherson maintained that he was the only one ever understood to be the sole owner, and Maximus simply “shared” with Mundo, the parties’ subsequent conduct (dividing of expenses and documentation, sharing in Maximus’ daily care, holding out to other members of the community that Maximus was “their” dog) further pointed to shared ownership. Whether certain documents had the name of one or the other party was less relevant where clearly each party contributed both effort and money, and where both parties were recognized by others as co-owners.

The Court acknowledged that each party had, in turn, resorted to a bad faith tactic in an effort to retain possession of Maximus. Mundo failed to return Maximus in accordance with their informal shared custody agreement. Then Weatherson surreptitiously removed Maximus from his veterinary appointment. While that behavior was not excusable, the Court also recognized that each party cared deeply for Maximus and derived much from Maximum’s companionship. And there was no clear discrepancy in the parties’ intentions; for example, neither party sought to exploit Maximus for income-generating practices such as breeding. And it was clear that the party who emerged unsuccessful from the litigation would feel the loss of a dear companion. Nonetheless, the Court had to make the difficult determination of which party would benefit most from retaining possession of Maximus and which party was in the position to best provide for Maximus’ physical and emotional needs.

Each party demonstrated the knowledge and financial capacity to provide for Maximums’ needs, and each was prepared to commit his time and energy to do so. However, based upon the evidence adduced at trial, the Court found that Mundo had met his burden to show that possession of Maximus should be awarded to him. His work schedule provided him a substantial amount of time to spend with Maximus and the ability to bring him to work on a frequent basis. And his colleague testified that Maximus appeared comfortable at the office and was afforded freedom to roam when he wanted.

Mundo’s longtime friend, Elizabeth Wheaton, testified that he structured his non-work hours around Maximus’ needs, ensuring that Maximus’ needs were met before all else. She further testified that Maximus so frequently accompanied their group of friends that their own friends and family were well acquainted with the dog. Finally, the testimony established that when the parties were not able to bring Maximus someplace, Maximus’ care fell to Mundo’s friends or family, guided by a lengthy and detailed document that he drafted by himself.

Weatherson testified that his work hours allowed more limited time to spend with Maximus, and that he brought Maximus to work less frequently. There was no testimony as to who would care for Maximus in the event that Weatherson had to travel or otherwise was unable to care for him. During the period of time that Mundo held Maximus past his agreed-upon time period, Weatherson did not make efforts to recover him until collecting him from the veterinary appointment several months later. To the extent that Weatherson, a veterinarian, provided the specialized care that Maximus required, he conceded that such care could readily be provided by another veterinarian and facility.

The Court concluded that Mundo had shown that he had intimate knowledge of Maximus’ physical and emotional needs and that he had the ability to spend significant time caring for and socializing Maximus. And Mundo further showed that he could care for Maximus while at work and on vacation, And that Maximus had become such an ingrained part of his life that his friends and family had themselves taken on parts of Maximus’ care.

As such, the Court found that Mundo established that awarding him possession of Maximus would be in the best interest for all concerned. The Court therefore awarded full possession of Maximus to Mundo.

With regard to Mundo’s cause of action for intentional infliction of emotional distress, the Court found that he had not met his burden. To prevail in an action for intentional infliction of emotional distress, a plaintiff must show:  extreme and outrageous conduct; intent to cause, or disregard of a substantial probability of causing, severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress. Liability had been found only where the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Here, the Court found that the evidence adduced at trial was not sufficient to establish that Weatherson’s conduct satisfied the elements of the cause of action. Accordingly, this cause of action was dismissed.

The Court found that Mundo established the awarding possession of Maximus to him was in the best interests for all concerned. Mundo was awarded full possession of Maximus to the complete exclusion of Weatherson, and the two-week alternate sharing arrangement ceased.

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