On March 10, 2009, the Superior Court of NJ, Appellate Division, broke new ground in the area of pet custody law. The case involved a dispute between Doreen Houseman and Eric Dale, a couple that had lived together for thirteen years. Doreen and Eric both loved Dexter, an adorable pug dog. Each of the parties wanted custody of Dex. Both parties had contributed financially toward purchasing and maintaining him. But when Ms. Houseman left the residence, she took Dexter with her. When she wanted to go on a vacation, she left the dog with her former boyfriend, Mr. Dale. When Ms. Houseman returned, Mr. Dale refused to give Dexter back. Ms. Houseman sought relief from the Court, asking for specific performance, that is, for Mr. Dale to give the dog back! (Specific performance is an equitable remedy which is ordered when monetary compensation can not adequately compensate the plaintiff.) For anyone who knew Dexter or who loves dogs, it is “a given” that you cannot put a price on a dog.

In the lower court, Gloucester County Superior Court Judge Tomasello awarded Ms. Houseman $1,500.00 (the full purchase price of the dog), but gave custody of the dog to Mr. Dale. Judge Tomasello held that since the dog is deemed to be property (like furniture) under the law, the supposed oral agreement could not be enforced. In so doing, Judge Tomasello denied Ms. Houseman’s request for an Order from the Court to return Dexter to her. She appealed. The Appellate court overturned the lower Court’s monetary award to Ms. Houseman and its custody decision that had favored Mr. Dale.

In the landmark decision, authored by Judge Jane Grall, the Appellate Division first looked at the underlying facts and procedural history of the case. Ms. Houseman contended that the parties had struck an oral agreement that she would gain custody of the dog. Then, the court delved into the main issue of the case: whether giving a person custody over a pet is a proper remedy of specific performance. In its opinion, while it rejected the ability of a court to rule on the “best interests” of a pet, the Appellate Division saw no reason why the doctrine of specific performance could not be applied. It cited previous case law that had established that some people reasonably place “special subjective importance” on a pet, just like many do with certain inanimate objects such as family heirlooms. The Appellate Court rejected the lower Court’s ruling that “specific performance is not, as a matter of law, available to remedy a breach of an oral agreement about possession of a dog…” Instead, it found that as long as a judge reasonably believes that an oral agreement had been made, and a party has demonstrated a “sincere affection for and attachment to it [a pet],” then such an agreement can be enforced in court. And, on remand, Judge Tomasello awarded joint custody of the dog to Ms. Houseman and Eric Dale, respectively. Each person has custody of the dog for five continuous weeks.