Upon divorce, how do Texas courts determine which spouse gets to keep pets acquired during the marriage?

This case concerns the types of damages available for the loss of a family pet. If a cherished dog is negligently killed, can a dollar value be placed on a heartsick owner's heartfelt affection? More pointedly, may a bereaved dog owner recover emotion-based damages for the loss? In 1891, we effectively said no, announcing a “true rule” that categorized dogs as personal property, ³ thus disallowing non-economic damages. In 2011, however, a court of appeals said yes,⁴ effectively creating a novel—and expansive—tort claim: loss of companionship for the wrongful death of a pet.

In today's case, involving a family dog that was accidentally euthanized, we must decide whether to adhere to our restrictive, 122–year–old precedent classifying pets as property for tort-law purposes, or to instead recognize a new common-law loss-of-companionship claim that allows noneconomic damages rooted solely in emotional attachment, a remedy the common law has denied those who suffer the wrongful death of a spouse, parent, or child,⁵ and is available in Texas only by statute.⁶

We acknowledge the grief of those whose companions are negligently killed. Relational attachment is unquestionable. But it is also uncompensable. We reaffirm our long-settled rule, which tracks the overwhelming weight of authority nationally, plus the bulk of amicus curiae briefs from several pet-welfare organizations (who understand the deep emotional bonds between people and their animals): Pets are property in the eyes of the law, and we decline to permit non-economic damages rooted solely in an owner's subjective feelings. True, a beloved companion dog is

[397 S.W.3d 186]

not a fungible, inanimate object like, say, a toaster. The term “property” is not a pejorative but a legal descriptor, and its use should not be misconstrued as discounting the emotional attachment that pet owners undeniably feel. Nevertheless, under established legal doctrine, recovery in pet-death cases is, barring legislative reclassification, limited to loss of value, not loss of relationship.

Bonnie Lou is a very fortunate little dog with two humans to shower upon her attentions and genuine love frequently not received by human children from their divorced parents. All too often children of broken homes are used by their parents to vent spite on each other or they use them as human ropes in a post divorce tug-of-war. In trying to hurt each other they often wreak immeasurable damage on the innocent pawns they profess to love. Dogs involved in divorce cases are luckier than children in divorce cases the do not have to be treated as humans. The office of "managing conservator" was created for the benefit of human children, not canine.

A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law. 3 Tex.Jur.3d 513 secs. 4 & 5, "Animals as Property" (1980). There was testimony that Bonnie Lou was given to Mrs. Arrington over ten years ago.

Mr. Arrington agreed to Mrs. Arrington's custody of the dog if he could have reasonable visitation. He does not complain of lack of visitation; only that he was not appointed managing conservator. We overrule point of error no. 7 with the hope that both Arringtons will continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court. We are sure there is enough love in that little canine heart to "go around". Love is not a commodity that can be bought and sold or decreed. It should be shared and not argued about.

§ 3.001. Separate Property

A spouse's separate property consists of:

(1) the property owned or claimed by the spouse before marriage;

(2) the property acquired by the spouse during marriage by gift, devise, or descent; and

(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

§ 3.002. Community Property

Community property consists of the property, other than separate property, acquired by either spouse during marriage.

§ 3.003. Presumption Of Community Property

(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

(b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence.

With respect to the dog, Peter testified that he had been the dog's primary caregiver and that he took the dog to work with him every day, but he also testified that Lisa had found the dog on the SPCA website, purchased it, and picked it up four years before the trial. On cross-examination, he admitted that he may have written letters to Lisa saying that he would never take the dog away from her.

Lisa testified that she found the dog at the SPCA in 2006, that she adopted it, and that it had been her constant companion ever since, riding in the car with her and sleeping in her bed. She said that she walked and fed the dog and took it to the vet and groomer, that the dog was like her child, and that she provided everything that happened with the dog concerning its care, maintenance, and

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upkeep. She admitted during cross-examination that she did not know who had taken care of the dog while she was confined in county jail for forty days for assault.

In a divorce proceeding, the trial court is charged with dividing the community estate in a "just and right" manner, considering the rights of both parties. Tex. Fam. Code Ann. § 7.001 (West 2006); Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no pet.). Trial courts are afforded wide discretion in dividing marital property upon divorce; therefore, a trial court's property division may not be disturbed on appeal unless the complaining party demonstrates from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion. Neyland, 324 S.W.3d at 649 (citing Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (stating that, to determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other

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words, whether the act was arbitrary or unreasonable), cert. denied, 476 U.S. 1159 (1986).

The trial court decided only the ownership of the dog and the note on the truck, stating in its ruling, "there being an agreement that the truck goes to [Lisa]." There was conflicting testimony as to who took care of the dog, but it was undisputed that Lisa selected the dog, adopted it, brought it home, and had at least a part in its care. Based on this evidence, the trial court did not abuse its discretion when it awarded the dog to Lisa.

Specifically, appellant contends that with respect to the items mischaracterized as appellee's separate property, appellee did not overcome the presumption that property possessed by either spouse at the dissolution of the marriage is presumed to be community property. See Tex. Fam. Code Ann. § 3.003(a). The party who seeks to assert that such property is his or her separate property must prove its separate character by clear and convincing evidence. Id. § 3.003(b). To overcome the statutory presumption of community property, the spouse must trace and clearly identify the property claimed as separate property. See Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987) (citing Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965)).

Appellant urges that awarding Lucky to appellee as her separate property was an abuse of discretion and that the presumption of community property was not overcome by clear and convincing evidence. Appellant contends that the trial court should have awarded Lucky to him as his separate property. Appellee testified that she purchased Lucky prior to the marriage with money she received when she cashed in bonds that were gifts from her grandmother. However, appellant contends that appellee gave Lucky to him as a gift and that Lucky is his separate property.

As we noted above, to rebut the community property presumption the spouse claiming that the property is separate property must establish by clear and convincing evidence that the property is separate property through tracing. Celso v. Celso, 864 S.W.2d 652, 654 (Tex. App.-Tyler 1993, no writ). Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Id.; Hilliard v. Hilliard, 725 S.W.2d 722, 723 (Tex. App.-Dallas 1985, no writ). Separate property will retain its character through a series of exchanges so long as the party asserting separate ownership can overcome the presumption of community property by tracing the assets on hand during the marriage back to property that, because of its time and manner of acquisition, is separate in character. Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex. 1975). If the separate estates of both spouses acquired the property, then the property would be held between the two parties as tenants in common, each owning one-half as their separate property. Id. at 168.

Neither party presented any evidence to clarify the source of funds used to purchase Lucky. However, it is undisputed that appellee purchased Lucky prior to the marriage. Under the family code, a spouse's separate property consists of the property owned or claimed by the spouse before marriage. Tex. Fam. Code Ann. § 3.001(1). However, in this case the parties lived together prior to marriage, and commingled their funds in a joint bank account. Both appellant and appellee testified that the funds used to purchase Lucky were the commingled funds from the joint bank account. Therefore, because neither of the parties established by clear and convincing evidence that Lucky was purchased with the separate property funds of either appellant or appellee, the most the evidence shows is that they own Lucky as tenants in common. See Cockerham, 527 S.W.2d at 168. Thus, the trial court erred in confirming Lucky as appellee's separate property.⁴

Pet dogs are property in the eyes of the law and a special form of personal property. Lira v. Greater Houston German Shepherd Dog Rescue, Inc., 488 S.W.3d 300, 304 (Tex. 2016) (per curiam). A forfeiture of rights of property is not favored by the courts, and laws will be construed to prevent rather than to cause such forfeiture. Id. Sassy is not a fungible, inanimate object. Id. The evidence presented with the motion for new trial shows that Sassy is neither community property nor the separate property of the parties. The trial court has no authority to award Sassy to either Appellee or Appellant. See Collins, 345 S.W.3d at 651. When a trial court includes a valuable asset belonging to a third party in its division, the mischaracterization of the third party's property affects the trial court's "just and right" division. See Sheshtawy, 150 S.W.3d at 780.

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The trial court abused its discretion by denying Appellant's motion for new trial. We sustain Appellant's second issue. It is unnecessary for us to reach Appellant's first issue. See TEX. R. APP. P. 47.1.