Supreme Court, Kings County, October 6, 2022

The Crawford Law Firm, Floral Park (Mark Crawford of counsel), for plaintiff.

C.C.B., defendant pro se.

This is a matrimonial action wherein plaintiff, L.B., seeks a divorce from defendant, C.C.B., pursuant to Domestic Relations Law § 170 (7) on the ground of irretrievable breakdown of the marriage, along with the ancillary relief of equitable distribution.

Defendant appeared and defended this action. Defendant seeks maintenance and equitable distribution.

It is well established that the "trial court, which had the opportunity to view the demeanor of the witnesses, [is] in the best position to gauge their credibility" (Massirman v Massirman, 78 AD3d 1021, 1021 [2d Dept 2010], quoting Peritore v Peritore, 66 AD3d 750, 753 [2d [*2]Dept 2009]). "In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Ivani v Ivani, 303 AD2d 639, 640 [2d Dept 2003]). "[T]he trial court's assessment of the credibility of witnesses [and evidence] is afforded great weight on appeal" (see Alper v Alper, 77 AD3d 694, 695 [2d Dept 2010]).

The court has had a full opportunity to consider the evidence presented with respect to the issues in this proceeding, including the testimony offered and the exhibits received. The court has had an opportunity to observe the demeanor of the parties and has made determinations on issues of credibility with respect to the parties and the evidence admitted. The court now makes the following findings of fact.

Pursuant to Domestic Relations Law § 236 (B) (1) (c), marital property includes all property acquired by either or both{**77 Misc 3d at 431} spouses during the marriage and before commencement of a matrimonial action, regardless of the form in which title is held (Majauskas v Majauskas, 61 NY2d 481 [1984]; see also Price v Price, 69 NY2d 8, 11 [1986]). Marital property is construed broadly in order to give effect to the "economic partnership" concept of the marriage relationship recognized in Domestic Relations Law § 236 (B) (Price, 69 NY2d at 15).

"Expressly excluded from the definition [of 'marital property'] is separate property which . . . includes only property acquired before marriage or through gift or inheritance, compensation for personal injury, property exchanged for or acquired through increase in value of separate property, or property designated as separate by written agreement of the spouses" (Majauskas, 61 NY2d at 488).

Pursuant to Domestic Relations Law § 236 (B) (5) (c) and (d), marital property shall be divided equitably between the parties, upon the court's consideration of the statutory factors set forth therein. Those factors are:

"(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

"(2) the duration of the marriage and the age and health of both parties;

"(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

"(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

"(5) the loss of health insurance benefits upon dissolution of the marriage;

"(6) any award of maintenance under subdivision six of this part;

"(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career{**77 Misc 3d at 432} enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;

"(8) the liquid or non-liquid character of all marital property;

"(9) the probable future financial circumstances of each party;

"(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

"(11) the tax consequences to each party;

"(12) the wasteful dissipation of assets by either spouse;

"(13) any transfer or encumbrance made in contemplation of a matrimonial [*3]action without fair consideration;

"(14) whether either party has committed an act or acts of domestic violence . . . against the other party and the nature, extent, duration and impact of such act or acts;

"(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal . . . ; and

"(16) any other factor which the court shall expressly find to be just and proper" (Domestic Relations Law § 236 [B] [5] [d]).^[FN*]

In making an equitable distribution award, the court has considered the relevant statutory factors enumerated above. The parties were married for 10 years when this divorce action was commenced. Plaintiff is 55 years old and defendant is 56 years old. Plaintiff did not offer testimony regarding health. Defendant testified that she experiences PTSD, but no evidence was presented to show that such experiences impact her ability to work or complete daily tasks (tr at 55). Defendant, in her statement of net worth, stated that she and plaintiff are in good health (defendant's exhibit A).{**77 Misc 3d at 433}

At the time of the parties' marriage in 2010, plaintiff was employed with the United Federation of Teachers earning approximately $150,000 to $160,000 per year (tr at 18). Defendant was employed as an adjunct college professor and substitute teacher and remains so employed today (tr at 18, 83). Defendant testified that her income at the start of the marriage was approximately $30,000 (tr at 52-53). The prenuptial agreement lists certain property that each owned in 2010. Plaintiff had an interest in four Brooklyn real estate properties and interest in real estate in Orlando. Defendant had an interest in real and personal property, including stocks and bonds, located in the Republic of Trinidad and Tobago. When this action was commenced in 2020, plaintiff earned $233,472.01 in ordinary wages (see plaintiff's exhibit 1, 2020 W-2 wage and tax statement). Defendant's 2020 tax returns reflect ordinary wages of $53,734 (see defendant's exhibit A).

Additional factors considered by the court include the maintenance award and the prenuptial agreement entered into by the parties.

In making an equitable distribution award, the court did not consider factors (3), (4), (5), (7), (10), (11), (13) and (14) since neither party introduced any evidence related to these factors (see Domestic Relations Law § 236 [B] [5] [d]).

Companion Dogs

The sole significant asset contested by the parties is custody and possession of their two dogs—three-year-old Rottweilers named Kane and Cleo. To be sure, the issue of who gets custody of the family pet following a divorce is often "no less contentious" than that of who gets custody of the minor children (see George Heymann, The 'Humanization' of Animals and the Custody of Companion Pets When Couples Separate or Divorce, NYLJ, Mar. 22, 2022). As stated by retired Justice Matthew F. Cooper, "[p]eople may stop loving their spouse at some point, but they never stop loving their dogs" (Susan Lehman, A Voice For The Yorkies and Doodles When Mom and Dad Split Up, The New Yorker, The Bench [Nov. 22, 2021 Issue], available at https://www.newyorker.com/magazine/2021/11/22/a-voice-for-the-yorkies-and-doodles-when-mom-and-dad-split-up).

For years, courts have grappled with the proper standard to apply in pet custody matters (see e.g. Raymond v Lachmann, 264 AD2d 340, 341 [1st Dept 1999] [courts have a "limited ability" to satisfactorily resolve pet custody disputes]; Travis v Murray, 42 Misc 3d 447, 449 [Sup Ct, [*4]NY County 2013] ["courts {**77 Misc 3d at 434}are left with little direction with respect to questions surrounding dog custody"]). Because dogs were treated as chattel, "it [was] the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that [were] ultimately determinative" (Travis, 42 Misc 3d at 453). However, in Raymond v Lachmann, the First Department, "[c]ognizant of the cherished status accorded to pets in our society [and] the strong emotions engendered by disputes of this nature," applied an in the "best for all concerned" standard in awarding custody of the family pet, a nearly 10-year-old cat named Lovey (id. at 341). In determining that Lovey should "remain where he has lived, prospered, loved and been loved for the past four years," the court considered factors such as Lovey's age and life expectancy and his physical and emotional well-being (id. at 341).

Almost 15 years later, in Travis v Murray, a matrimonial trial court considered whether the court should employ a "best interests of the canine" standard in determining custody of a couple's 21/2-year-old miniature dachshund named Joey (Travis, 42 Misc 3d at 456). Recognizing the treasured and valued "place [that pets] have in our hearts, minds and imaginations," the court found that "a strict property analysis [in determining a pet dispute] is neither desirable nor appropriate" (Travis, 42 Misc 3d at 451-456). After a thorough analysis of pet ownership and possession cases from across the country, the trial court ultimately directed a hearing to resolve the dispute with the applicable standard being the "best for all concerned" standard promulgated in Raymond v Lachmann. The court further stated,

"In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey's needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine,{**77 Misc 3d at 435} rather than with her, or with plaintiff for that matter, in New York?" (Travis, 42 Misc 3d at 460.)

Notwithstanding its adoption of the "best for all concerned" standard, it is clear from the court's questions that that which was in the "best interest of the pet" was also considered (cf. Eschbach v Eschbach, 56 NY2d 167, 171 [1982] ["Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote its welfare and happiness' "]; Matter of Yu Chao Tan v Hong Shan Kuang, 136 AD3d 933, 934 [2d Dept 2016] [The determination of custody can only be resolved after a full hearing and careful analysis of the factors that would further the child's best interest including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent"]).

In another pet dispute case, this time involving neighbors and not domestic partners, the trial court utilized the "best for all concerned" standard in awarding the defendant possession of Sylvester/Marshmallow, a four-year-old cat that had wandered away from the defendant's home and was cared for by the plaintiff for a period of several months (Finn v Anderson, 64 Misc 3d [*5]273, 278 [Jamestown City Ct 2019]). In its decision, the court, while "not persuaded that a court could not evaluate the 'best interests' of a pet," nevertheless opined that a strict best interests standard was not appropriate in pet dispute cases because unlike a child, which the court has a responsibility "to ensure . . . is nurtured into independent adulthood," "a pet never becomes an independent being apart from the owner" (id. at 277 [emphasis added]). While a pet may never become an independent being apart from its owner, it appears that a trial court can, and in fact now must, evaluate the "best interests of a pet."

Effective October 25, 2021, New York matrimonial courts no longer have to grapple with how to decide pet custody cases. The issue of the applicable standard to apply in pet custody cases has finally been put to rest with the enactment of law which requires courts to consider "the best interest" of a companion animal when awarding possession in a divorce or separation proceeding (Domestic Relations Law § 236 [B] [5]{**77 Misc 3d at 436}[d] [15]). In its justification for the bill, the New York State Legislature reasoned, "For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce" (Senate Introducer's Mem in Support, Bill Jacket, L 2021, ch 509 at 6).

In determining the best interests of a companion animal under Domestic Relations Law § 236 (B) (5) (d) (15), the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal's day-to-day life; the availability and willingness of each party to care for the companion animal; each party's involvement in health and veterinary care decisions; the quality of each party's respective home environment; the care and affection shown towards the companion animal; and each party's fitness and caretaking abilities. No single factor is dispositive.

Accordingly, in determining equitable distribution of the parties' companion animals, the court will be guided by what is in Kane and Cleo's best interest. In weighing the factors relevant to Kane and Cleo's best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (see generally Eschbach, 56 NY2d at 173).

The story told at trial regarding how the parties located and welcomed Kane and Cleo into their family reflected, to this court, the level of each party's love and affection for the dogs at the outset. According to plaintiff, he found the dogs online and the parties then drove to Pennsylvania together to pick them up (tr at 44). When asked on cross-examination how Kane and Cleo were specifically chosen, plaintiff explained, "We were both there and whoever jumped towards us, right, are the dogs that we got on that day. But I paid for them" (tr at 44). On the other hand, defendant shared a more vivid, reflective story of how Kane and Cleo came into their lives. She stated,

"We went together to get Kane and Cleo and we had—we went to get Kane, let me correct you. We went to get Kane and Cleo suckered her—she's all love, she is a big Rottweiler but she wants love and she came into my arms and that was it. So we didn't go to get Cleo, Cleo picked us, that's how she came. We went to get one Rottweiler and came back{**77 Misc 3d at 437} with two" (tr at 55-56).

Defendant acknowledged that plaintiff paid for the dogs, but submitted that he got them for her because "it was hard for [her] to be alone" after the loss of their previous pet, a dog named Jake (tr at 55).

It is undisputed that during the course of the marriage, the parties shared in the caretaking duties of Kane and Cleo (tr at 36, 57). Plaintiff testified that he trained them and that he was [*6]responsible for walking and feeding them until the parties "started to fall out" (tr at 44). He nonetheless reminded this court that he "can't walk them and feed them if [the parties] are having problems in the house and [he is] not there" (id.). Notwithstanding his contention that he cannot walk and feed the dogs because he is no longer in the home, plaintiff later claimed that since the breakdown of the parties' marriage, he "walk[s] them; feed[s] them; [has] taken them to the vet . . . make[s] sure that they are covered in terms of the house insurance;" and up until last year, paid for their vet bills (tr at 46).

Defendant admitted that plaintiff helped raise and train Kane and Cleo, but asserted that she has always been the dogs' primary caretaker (tr at 56). She stated that other than the liability insurance which plaintiff covers, she is the "sole provider" of "their daily needs, everything, their health, their food, everything" and that since last year, she has been paying for their health insurance (tr at 57).

While it is undisputed that the parties shared in the caretaking duties during the marriage, defendant has borne almost sole responsibility for Kane's and Cleo's day-to-day care. Plaintiff is out of the house which rendered defendant the de facto custodial caretaker during the separation. According to defendant, plaintiff stopped the daily care of feeding and walking the dogs "even before" he left the marital residence, and since he left in March or April of 2021 has only walked them "about three times" (tr at 56). On cross-examination, when pressed as to how defendant could know whether plaintiff walked the dogs when she was not home, defendant answered,

"I know how many times they poop in the morning, how many times they poop in the afternoon. I know their bowel movements. I know them and how they—I know everything about them. So if he would have walked them while I wasn't there, if he would have moved the leash while I wasn't there, I would know" (tr at 64-65).

{**77 Misc 3d at 438}Both parties also testified in some respect regarding maintaining the health of the dogs. Plaintiff stated that he makes sure the dogs are covered under the home insurance and has taken them to the vet. Defendant also acknowledged that a month or two before the trial, plaintiff helped her by taking Kane to the doctor because "we have problems with shots because [Kane] is afraid of needles" (tr at 56-57). The court notes that plaintiff's statement of net worth, sworn to on April 21, 2022, does not reflect any veterinarian/pet expenses, whereas defendant's statement of net worth, sworn to on October 20, 2021, reflects veterinarian/pet expenses in the amount of $4,000 (plaintiff's exhibit 1; defendant's exhibit A).

With respect to his relationship with the dogs, plaintiff, after acknowledging that he is unable to tend to the dogs' daily needs because he is not in the home, asserted that "but when I come back there is no question that they gravitate towards me" (tr at 44). When asked what should be done with the dogs, plaintiff responded, "My intention was to let her take the Rottweilers if we resolve the case. If we don't resolve the case, then we have to talk about what that looks like" (tr at 37). When asked again whether he would be seeking custody of the dogs, plaintiff again emphasized that if the parties resolved the case, he was "willing to part with them" (id.). When advised, "[y]ou're at trial now," plaintiff nonchalantly responded, "[w]ell, we can split those two" (id.).

Unlike plaintiff's response, defendant's position on what should happen with the dogs was impassioned and heartfelt. She did not refer to the dogs as possessions or chattels, but as her "family" and "emotional support" and asserted that removing them from her would be "devastating" (tr at 57). While recognizing that "they are not sentient beings legally," she stressed that the dogs have feelings and that "their love is unconditional" (tr at 66-67). She [*7]conceded that the dogs love plaintiff and that "they are having problems with him not being around now, particularly Cleo 'cause she's really attached to him," but that Cleo "is getting used to it, his not being in her life" (tr at 66, 70). She emphasized that dogs need consistency, "like kids" (tr at 66-67).

Here, after weighing the factors that would further Kane and Cleo's best interest, including factors such as which party is primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and{**77 Misc 3d at 439} the quality of the home environment as one in which the dogs would "live, prosper, love and be loved," as well as evaluating the testimony, character and sincerity of the parties, the court finds that it is in Kane and Cleo's best interest to remain together in defendant's sole care. Accordingly, care and custody of the parties' Rottweilers, Kane and Cleo, is awarded to defendant.

[Portions of opinion omitted for purposes of publication.]