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

It is undisputed in the law that dogs and other domestic animals, commonly referred to as pets, are subjects of property or ownership. Levine v. Knowles, 197 So.2d 329 (Fla. 3d DCA1967). In fact, once any animal has been legitimately reduced to private control, confinement, and possession, it becomes private property. Barrow v. Holland, 125 So.2d 749, 751 (Fla.1960). When that occurs, the owner thereof cannot be deprived of the use thereof, except in accord with all of the elements of due process. Id.

Husband, Ronald Greg Bennett, appeals from a final judgment of dissolution of marriage which, among other things, awarded custody of the parties' dog, "Roddy." The husband asserts that (1) the trial court erred in awarding the former wife visitation with the parties' dog, and (2) the trial court erred in modifying the final judgment to increase the former wife's visitation rights with the dog. We find that the trial court lacked authority to order visitation with personal property; the dog would properly be dealt with through the equitable distribution process.

A brief recitation of the procedural history will demonstrate the morass a trial court may find itself in by extending the right of visitation to personal property. The parties stipulated to all issues in the final judgment of dissolution of marriage except which party would receive possession of the parties' dog, "Roddy." After a hearing, the trial court found that the husband should have possession of the dog and that the wife should be able to take the dog for visitation every other weekend and every other Christmas.

The former husband contested this decision and filed a motion for rehearing alleging that the dog was a premarital asset. He also filed a motion for relief from final judgment and an amended motion for rehearing. The wife replied and filed a motion to strike former husband's amended motion for rehearing and a motion for contempt. The former wife requested that the trial court transfer custody of the dog because the former husband was refusing to comply with the trial court's order concerning visitation with the dog.

A hearing on these motions was held on September 27, 1993. The wife's counsel filed an ore tenus motion requesting the trial court to change custody, or in the alternative, change visitation. The trial court denied the former husband's motion for rehearing and granted the former wife's ore tenus motion to change visitation. Thus, the trial court's ruling on visitation now reads:

7. Dog, Roddy: The former Husband, RONALD GREGORY BENNETT, shall have custody of the parties' dog "Roddy" and the former Wife, KATHRYN R. BENNETT n/k/a KATHRYN R. ROGERS shall have visitation every other month beginning October 1, 1993. The visitation shall begin on the first day of the month and end on the last day of the month.

Based on the history of this case, there is every reason to believe that there will be continued squabbling between the parties concerning the dog.

While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property. County of Pasco v. Riehl, 620 So.2d 229 (Fla. 2d DCA 1993), and Levine v. Knowles, 197 So.2d 329 (Fla. 3d DCA 1967). There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property. Sec. 61.075, Fla.Stat. (1993).

While several states have given family pets special status within dissolution proceedings (for example, see Arrington v. Arrington, 613 S.W.2d 565 (Tex.Civ.App.1981)), we think such a course is unwise. Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the proceedings in the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the

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protection of our children. We cannot undertake the same responsibility as to animals.

While the trial judge was endeavoring to reach a fair solution under difficult circumstances, we must reverse the order relating to the custody of "Roddy," and remand for the trial court to award the animal pursuant to the dictates of the equitable distribution statute.

§ 61.075. Equitable distribution of marital assets and liabilities

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties.

[...]

(6) As used in this section:

(a)

1. "Marital assets and liabilities" include:

a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

[...]

Former Wife testified that the family had two dogs, Liberty and Nico. Apparently, the dogs were bonded to each other. She also testified that the family adopted Liberty "to be an emotional support dog." She testified that Liberty provided her with emotional support, was her constant companion, and "was the little girl [she] didn't have."

Former Wife testified that she took care of the dogs from the time the family adopted them in 2013 and 2014, respectively, to the time the parties separated in 2017. The dogs had been in Former Husband's possession and care since then. Former Wife explained that the dogs briefly visited her in June 2018 when they accompanied the children to visit at Former Wife's house. She returned the dogs with the children to Former Husband, but she wanted the dogs to stay with her.

Former Wife testified that she never asked the children how they would feel losing the family dogs. When asked whether the children were close to the dogs, the trial court sustained a relevancy objection. The trial court believed it could not consider the children's attachment to the dogs to distribute them.

After trial, the trial court entered its second amended final judgment. The trial court found Former Husband's financial affidavit to be fair and accurate. The trial court found that Former Husband needs $1735.89 a month in alimony until he sells his house. It then determined that Former Husband's needs would grow upon the sale of his house. Consequently, the trial court awarded him $2439.89 a month in alimony once he sells the house and purchases a new house. The trial court calculated the change by (1) adding the future HOA fees, health insurance, future home insurance, and future property taxes; and (2) replacing the fees for the lawn care, the mortgage, pest control, utilities, telephone "with $1500, which is what [Former] Husband testified would be the total amount

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for all utilities, and all other expenses previously deducted." The trial court also provided that Former Wife's child support obligation would increase from $1558.87 to $1708.72 once Former Husband sells the house.

The trial court determined that the family dogs were marital property. The trial court observed that Former Wife was in good health; it did not note any physical or mental disabilities. The trial court noted that the parties agreed the dogs should not be separated and that "[t]he dogs have been in [Former Husband's] possession since the [p]arties’ separation." It distributed the dogs to Former Husband.

Former Wife argues that the trial court's distribution of the family dogs to Former Husband was arbitrary, capricious, and unsupported by the record. She maintains that Liberty is her emotional support animal, the dogs are bonded, and Former Husband did not testify otherwise or claim a desire for the dogs. She acknowledges, however, that the dogs have been in Former Husband's possession since sometime in 2017. Former Husband points out that "the parties agreed the dogs should not be separated" and "Former Wife did not attempt to retain the dogs when temporarily in her possession."

We review the trial "court's findings regarding equitable distribution for an abuse of discretion." Witt v. Witt, 74 So. 3d 1127, 1129 (Fla. 2d DCA 2011). "[A] trial court has broad discretion to fashion an equitable distribution scheme," as long as it supports its distribution with specific factual findings that are supported by competent, substantial evidence. Id.

The trial court's discretion may not be "exercised in accordance with whim or caprice of the judge nor in an inconsistent manner." Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980); see, e.g., Noah v. Noah, 491 So. 2d 1124, 1128 (Fla. 1986) (concluding that the trial court's distribution "of the marital assets, in part because of respondent's adultery, makes this distributional scheme appear to be inequitable, contrary to ... Canakaris, 382 So. 2d at 1204, and also smacks of punishment"). After all, "equitable distribution contemplates fair and equal distribution of marital assets in the absence of special equities, special needs or special circumstances." Ziemba v. Ziemba, 519 So. 2d 752, 753 (Fla. 4th DCA 1988).

In several states, pets have a special property status that the trial court must consider for fair and equal distribution of the marital assets. See Margherita Downey & Sherry Andrews, Pets Should Receive Special Consideration in F.S. Ch. 61, Dissolution and F.S. Ch. 741, Domestic Violence, 94 Fla. B.J. 38, 39 (Mar./Apr. 2020) (discussing several states that have "recogniz[ed] that people dearly love their pets" and that Alaska's law specifically allowed the trial court "to determine the well-being and fate of the family pet when that is an issue in a dissolution action"). Florida is not one of those states. See Bennett v. Bennett, 655 So. 2d 109, 110 (Fla. 1st DCA 1995) ("There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property." (citing § 61.075, Fla. Stat. (1993) )).

Rather, "under Florida law, animals are considered to be personal property." Id. (first citing County of Pasco v. Riehl, 620 So. 2d 229 (Fla. 2d DCA 1993), and then citing Levine v. Knowles, 197 So. 2d 329 (Fla. 3d DCA 1967) ); see also Springer v. Springer, 322 So. 3d 172, 173 n.1 (Fla. 2d DCA 2021) ("While a dog may

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be considered by many to be a member of the family, under Florida law, animals are considered to be personal property." (quoting Bennett, 655 So. 2d at 110 )).

Section 61.075(1), Florida Statutes (2019), requires the trial court to "set apart to each spouse that spouse's nonmarital assets" and then distribute the marital assets with the beginning premise that the distribution should be equal.⁴ The trial court shall distribute the marital assets "based on competent substantial evidence with reference to the factors enumerated in subsection (1)." § 61.075(3). Section 61.075 does not explicitly address the distribution of pets in dissolution proceedings; Florida courts must consider the factors enumerated in section 61.075(1), as is, along with any special needs or special circumstances to distribute pets. See Ziemba, 519 So. 2d at 753.

Each party wanted the family dogs and left the issue for the trial court to determine. See § 61.075(1)(f). The trial court did not find that Former Wife was required to or failed to keep the dogs when they were temporarily in her possession in June 2018, nor did it use such a finding to penalize her or determine that she did not desire the dogs.

Each party has cared for the dogs, albeit, at different times. See § 61.075(1)(g). Former Wife took care of the dogs for several years until the parties separated in 2017. Former Husband cared for the dogs thereafter.

Principally, Former Wife claims that justice requires the trial court to award the dogs to her because Liberty was an emotional support animal. Emotional support animals are typically given special considerations under the law, such as being "permitted as a reasonable accommodation for a person with a disability in housing" or permitted in an airplane's cabin.⁵ Matthew W. Dietz, Assistance Animals in Foster Care, 91 Fla. B.J. 40, 40 (Sept./Oct. 2017) (footnotes omitted); see also 14 C.F.R. § 382.117 (2020); 24 C.F.R. § 100.204 (2020); 42 U.S.C. § 3604(f)(3)(A) (2020); § 760.27, Fla. Stat. (2020).

Emotional support animals "provide[ ] emotional support that alleviates one or more identified symptoms or effects of a person's disability." Dietz, supra; see also 24 C.F.R. § 5.303; Americans with Disabilities Act, 42 U.S.C. § 12101 (2020); Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 - 19; § 760.27(1)(a) (" ‘Emotional support animal’ means an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person's disability.").

The evidence before us may indicate that Liberty was emotionally comforting, but it did not show that Former Wife had a disability or that Liberty provided emotional support to alleviate an effect thereof. Conversely, the trial court observed that Former Wife was in good health and did not note any physical or mental disabilities

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. Former Wife only proved that Liberty provided emotional comfort, as would any ordinary pet. Cf. In re Kenna Homes Coop. Corp., 210 W.Va. 380, 557 S.E.2d 787, 800 (2001) ("The evidence indicates that the dogs provide comfort and companionship to the Jessups. However, the same can be said of most household pets. Palliative care and the ordinary comfort of a pet are not sufficient to justify a request for a service animal under the [federal and state law].").

The trial court may consider a party's sentimental interest in property, such as the ordinary attachment to pets, alongside the other factors of section 61.075. See § 61.075(1)(j) (permitting the trial court to consider "[a]ny other factors necessary to do equity and justice between the parties"); cf. Thomas-Nance v. Nance, 189 So. 3d 1040, 1042 (Fla. 2d DCA 2016) ("[T]he sentimental interest of one party in marital property cannot take priority over financial fairness to the other party."). But Former Wife's argument rests on her apparent misconception that she is the only family member with an attachment to the dogs. The evidence reflected that the parties used the dogs to comfort the children throughout the dissolution proceedings, and the children resided a majority of the time with Former Husband. Further, Former Husband had been taking care of the dogs for the past three years. Liberty and Nico were family dogs, not Former Wife's personal dogs. We cannot conclude that the trial court abused its discretion in awarding the dogs to Former Husband. See Witt, 74 So. 3d at 1129.