Best Interests Of Teddy Bear

The Massachusetts Appeals Court reinstated a preliminary injunction in a dispute over custody of a dog

The plaintiff brought this Superior Court action against his former romantic partner, the defendant, seeking specific performance of an agreement to equally share possession of their jointly-owned property, a Pomeranian dog named Teddy Bear. The plaintiff alleged that Teddy Bear is a “specific and unique chattel.” The plaintiff sought, and a motion judge issued, a preliminary injunction requiring the defendant to share Teddy Bear with the plaintiff for alternating two-week periods. The defendant sought relief from a single justice of this court, arguing that, although the dog was co-owned, the judge had no authority to order “shared custody” of a dog. The single justice vacated the preliminary injunction, concluding that the motion judge had improperly treated Teddy Bear as if he were the parties’ child. The plaintiff appealed the single justice’s order to this court. We conclude that there was insufficient basis to vacate the preliminary injunction, and therefore we reverse the single justice’s order.

After the split

After a hearing, the motion judge credited the plaintiff’s evidence of a binding agreement for shared possession. She found that “[t]he parties each paid half of the price of the dog, expressed intent to share custody even if they separated, and acted on that agreed/shared custody until Jan[uary] 202[2].” Her preliminary injunction, referring to “the property known as Teddy Bear,” ordered that “[b]ased upon joint ownership rights, both parties shall be allowed to have Teddy Bear for alternating [two]-week periods. Beginning on [November 27, 2022], Teddy Bear will be exchanged at a mutually agreeable location for each exchange (Sunday-Sunday).”

On appeal

The single justice concluded that the motion judge abused her discretion by “effectively treat[ing] the dog . . . as if it were the parties’ child,” instead of as personal property. The single justice therefore vacated so much of the preliminary injunction as required the parties to alternate possession of Teddy Bear. The plaintiff then appealed to this court. 

Here

Although the motion judge used the phrase “shared custody,” nothing in her order treated Teddy Bear as a child. Nor should anything in our decision be construed as altering the status of pets in divorce proceedings. The judge’s order is supported by settled principles of property and contract law, even if there is little precedent for combining them to apply to a pet dog.

Injunctive relief

In this case, however, the judge was asked not to determine whether the parties should share possession of Teddy Bear, but merely to enforce, on a preliminary basis, the parties’ own preexisting agreement for shared possession. Although the potential for acrimony and disputes over minor details of shared possession remains, the most difficult decision, according to the plaintiff’s as yet unrebutted evidence, had already been made by the parties themselves and carried out over a period of some months. We cannot say that the judge abused her discretion in ordering specific performance here. But it is within the judge’s discretion to revisit that decision if further proceedings or the parties’ actions suggest that the burdens of such enforcement on the court are disproportionate to the benefits.

(Mike Frisch)