This blog is the first entry in the "Practitioner's Corner" series, where I discuss recent developments in Washington case law that pertain to divorce. The case today is In re: the Marriage of Niemi. The link for the case is at the bottom of this article if you want to read the entire opinion.
In Niemi, Division One took on the challenging topic of what to do with family pets during a divorce. The parties had been married for nearly 30 years when a divorce action was filed. Their two large dogs, Kona and Mr. Bear, were deeply beloved by both parties. In her request for relief in the divorce, Ms. Niemi asked for at least 10 hours of visitation a week with the dogs, who primarily resided with Mr. Niemi after the couple separated. At the conclusion of the case, the Court ordered that the dogs would continue to reside with Mr. Niemi, but that Ms. Niemi would have extensive visitation rights and that the parties would have to pay pro rata shares of the vet bills. (This is written not unlike a residential schedule and child support order.) Mr. Niemi objected to the set schedule and ultimately appealed.
The important distinction here that clients struggle with is that pets, despite how beloved they might be, do not enjoy the same rights as human children. Under the law, they are considered property and must be divided by the Court in a divorce. See Sherman v. Kissinger, 146 Wn. App. 855, 861, 195 P.3d 539 (2008).
Courts do have extremely broad discretion to distribute marital property in the interests of fairness. In re Marriage of Kraft, 119 Wn.2d 438, 450, 832 P.2d 871 (1992); see also RCW 26.09.080. It is not, however, without limits.
In Niemi, Division One held that "nothing in RCW 26.09.080 empowers a trial court to compel a party to produce their separate property for the use and enjoyment of another after dissolution." If you think about this in any other context, it makes sense. A Court would never get away with ordering that a spouse have continuing visitation rights in regards to a couch, or pay for a share of maintenance of the couch.
Ms. Niemi pointed out that the Court had created judicial remedies in divorce cases outside of what the legislature specifically allowed. For example, in In re Parentage of L.B., The Washington Supreme Court created a set of rights for "de facto parents," stemming from a finding that such parties had enjoyed these rights at common law. She reasoned that the Court would be within its power to fashion a similar judicial remedy for pets.
The appellate court declined to make a similar finding in this case, pointing out that the idea of "de facto parentage" had been present, implicitly and explicitly in common law, for a long time. It had also been addressed to some extent by existing legislation. To the contrary, there has not been a long history of pets receiving special treatment in Washington's decisional authority, nor any statute which gives the impression the legislature intended to do this, directly or indirectly. The Court declined Ms. Niemi's request to create a special property category for pets because it would effectively be doing so without statute or common law to support it.
The Court also pointed out that creating pet visitation would go against the statutory and decisional mandates that property divisions should be final and should not involve continued joint ownership after a divorce. Shaffer v. Shaffer, 43 Wn.2d 629, 631, 262 P.2d 763 (1953)(Parties to a dissolution have a right to have their property interests “definitely and finally determined” without the prospect of future litigation). The Court also declined to create this remedy because of fear that the Courts would then be inundated with "pet custody cases" between feuding parties.
So, where does that leave us as practitioners? We will have to make sure our clients understand that the trial court's decision on this matter will be very black and white. There will not be visitation with animals, as emotionally challenging as that is. This case is worth reading if you are about to take this issue to trial, because it does provide some discussion on the factors the Court considered in the placement of such animals.
Another discussion to have with clients is agreement outside the divorce process. Just because the Court can't order this relief as part of a divorce decree does not mean that two parties cannot make a contract, outside of the divorce, to address the issue. The case law above may serve as a significant motivating factor for the parties to figure out something about their animals outside of court, given that a legal battle will end with a definite winner and loser.
The role of pets in our society is changing. Examining social media indicates to me that people very much view them as family members as opposed to property. One day, the Courts or the Legislature could (and potentially should) provide us more guidance in regards to these issues, but for now, we will have to do out best to know the lay of the land and advise clients accordingly.
Link to Appellate Opinion:
https://cases.justia.com/washington/court-of-appeals-division-i/2021-82549-6.pdf?ts=1633378351
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