Does Divorcing Spouse's Euthanizing Family Pet Violate Court Orders Preventing Disposal of "Property"?

No, says a judge, applying New York law.

From C.M. v. E.M., decided last week by Justice Edmund Name of the Nassau County (N.Y.) trial court:

[T]he principal issue raised on these motions is whether or not the euthanasia of a family companion animal during the pendency of a matrimonial action is violative of the Automatic Orders. There can be no doubt that the loss of a family pet or companion animal can be devastating. But the principal question before the Court is a narrow one. The Court concludes, after examining the text of the Automatic Orders, reviewing the Legislative history and underlying purpose of the enactment of Automatic Orders, considering the evolution of case-law with respect to companion animals and the Legislative history behind DRL [Domestic Relations Law] § 236(B)(5)(d)(15), and reviewing the purpose of the Defendant's application, that the euthanasia of a companion animal without the consent of the other party is not violative of the Automatic Orders in a matrimonial action. While the Defendant may have other remedies at law—both civilly and criminally—the narrow and drastic remedy of contempt of court the Defendant seeks here is not one of them….

The Defendant [husband] argues that the Plaintiff [wife] vindictively violated the Automatic Order by putting their beloved family pet, B., to death without reason, necessity or justification. The Defendant argues that B. was an emotional support dog whose custody had not been determined. The Defendant argues that the Plaintiff did not discuss B.'s medical condition nor provide the opportunity for the Defendant to spend time with B. before the dog's death. The Defendant argues that he is suffering extreme emotional distress because of B.'s death. The Defendant seeks compensation for this loss in the amount of $1,500 as punitive damages….

The Plaintiff argues that the Defendant was not an emotional support animal, could no longer walk without a severe limp, had "too many" masses to count, and was on significant pain medication since July, 2023. The Plaintiff argues that she was given a prescription for a tranquilizer for the dog, transported the dog to the Vet, and at the Vet appointment, the dog lunged at the Vet. The Plaintiff argues that the Vet recommended euthanasia….

The Automatic Orders that were served in this action provide:

(1) Neither part [sic] shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.

The Automatic Orders are codified within DRL § 236(B)(2)(b). That section of the statute is entirely devoid of any reference to companion animals. Companion animals are not listed, nor provided in, the text of the Automatic Orders. The text of the statute only proscribes the disposition of property. While the text of the statute provides specific examples, the statute is nonlimiting. In light of the statute's silence, this Court is left with insufficient guidance to determine whether or not a companion animal is included within the statute.

The Court therefore turns to the Legislative History of the enactment of the Automatic Orders…. The purpose and justification of the bill underlying the enactment of the Automatic Orders in matrimonial actions was, in this Court's view, to help redress the problem of the dissipation of assets which may have monetary value and to prevent parties and children from being removed from life, health and other insurance policies during the pendency of an action…. [The court then cites New York precedents likewise view the Automatic Orders as aimed at preventing the dissipation of valuable assets. -EV] …

[After canvassing various court decisions and statutes, the court concludes:] It is the opinion of this Court that the Legislature's intent was to shift away from classifying companion animals as "pets" or chattel. Therefore, B. cannot be classified as either "property" or an "asset" for the limited purpose of treatment under the Automatic Orders.

In furtherance of its conclusion, the Court notes that other statutes have given companion animals additional protection. Consider the Family Court Act. The Court notes that protection, to some degree, is afforded to a companion animal under Family Court Act § 842(i)(1) & (i)(2), which provides, in sum and substance, that an order of protection can include terms that the respondent … ["]refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household.["] The Court cannot reasonably conclude that something that is given special protection under the Family Court Act is treated in the same form as an "asset" for purposes of the Automatic Orders….

The purpose of the Defendant's application is for an adjudication of contempt of court. As the Second Department has held, the goal of civil contempt is to vindicate the rights of a private party to the litigation, while criminal contempt involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates….

A close reading of the Affirmation of the Defendant's counsel does not propound arguments sounding in contempt. Rather, the arguments sound, in part in tort law, and in part in criminal law. Those claims, if viable, are not properly before this Court….

The Defendant alleges, among other things, that the Plaintiff intentionally put B. to death, effectively implying that the euthanasia of B. was unnecessary. If true, that conduct may constitute a Class A misdemeanor, provided the necessary elements are met. The Court makes no finding in this regard. The Court is also unsure whether or not the Defendant ever filed a criminal complaint. The Court makes this point to punctuate its conclusion that a companion animal is not an asset with protection under the Automatic Orders. While they may indeed have been afforded protection elsewhere, relief under the Automatic Orders is not viable. Inasmuch as contempt is a drastic remedy which should not be granted absent a clear right to such relief, the Defendant has failed to convince the Court that there is a clear right to such relief on this application….

[T]here can be no doubt that the loss of any pet is profound. But the question before the Court was whether or not the euthanasia of B.—a companion animal—constituted a violation of the Automatic Orders because that euthanasia was performed without a court order or agreement of the Defendant. The Court answers this question in the negative. The Court simply performs its duty by answering the narrow question in issue, and does not opine on whether or not the Defendant has other remedies in law, civilly and/or criminally. This Court takes no position on same. This decision should not be read as dispositive on whether or not the Defendant has any such claims, nor should it be read as dispositive if the Defendant, in fact, brings such claims against the Plaintiff….

Megan E. Woolley represents plaintiff.