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

CHATTELS PERSONAL AND THE MARRIED WOMAN

Blackstone designated twelve methods by which personal property could be acquired or lost. The sixth mode was marriage. ¹ By marriage the husband acquired chattels personal and the wife lost them. Because of 'the notion of unity of person between the husband and wife, it being held, that they are one person in law, so that the very existence of the woman is suspended during the coverture, or entirely merged into that of the husband,' chattels which formerly belonged to the wife were, by act of law, vested in the husband, with the [276 A.2d 694] same degree of property and the same powers, as the wife, when sole, had over them. * * * As to chattels personal or choses in possession which the wife has in her own right, as ready money, jewels, household goods, and the like, the

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husband had therein an immediate and absolute property devolved in him by the marriage, which never can again revest in the wife or her representatives.' ² There was one instance, however, in which the wife acquired a property in some of her husband's goods and as to such goods they remained to her after his death and did not go to his executors. 'These are called her paraphernalia, a term used in the civil law, and derived from the Greek, signifying something over and above her dower. In our law it signifies the apparel and ornaments of the wife, suitable to her rank and degree. These she retains at the death of her husband, over her jointure or dower. The husband cannot bequeath by his will such ornaments and jewels of his wife, though perhaps during his life he might have the power to dispose of them. But if she continues in their use until her husband's death, she shall afterwards retain them against all persons, except creditors, where there is a deficiency of assets.' ³

See Bayne v. State, Use of Edelen, 62 Md. 100, 104.

The common law rights of the husband in the chattels of his wife have been completely repudiated. Code, Art. 45, § 4 provides:

'Married women shall hold all their property of every description for their separate use, as fully as if they were unmarried, and shall have all the power to dispose of by deed, mortgage, lease, will or any other instrument that husbands have to dispose of their property, and no more.' ⁴

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[276 A.2d 695] The pellucid status of the law today leaves no distinction as to property in chattels personal between a husband and a wife. The husband retains property in the chattels personal which were his when he entered the martial status and holds for his sole and separate use the chattels personal he acquires during coverture ⁵; the wife

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retains property in the chattels personal which were here when she entered the marital status and holds for her sole and separate use the chattels personal she acquires during overture.

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¹ Blackstone's Commentaries on the Law (Gavit Ed.) Ch. XXVI, p. 453. The eleven other methods were occupancy, prerogative, forfeiture, custom, succession, judgment, gift or grant, contract, bankruptcy, testament, and administration.

Chattels personal 'are things movable, which may be annexed to or attendant on the person of the owner, and conveyed by him from one place to another. Such are animals, furniture, money, jewels, grain, garments, and the like.' Id., Ch. XXIV, p. 443.

Property in chattels personal may either be an absolute or qualified property in possession or a property in action. For a full discussion of property in chattels personal see id., Ch. XXV, pp. 445-449 and Gavit's notes, pp. 450-452.

We see no ambiguity about the purpose of this statute: by its very terms, it defines and limits the compensatory damages value of pets—which the law always have treated as chattel (not cattle, see § CJ 11–110(a)(3)(ii) )—“[i]n the case of the death of a pet” or “[i]n the case of an injury to a pet.” CJ § 11–110(a)(2)(i) and (ii). Whether or not we might agree with the decision to value pets for these purposes entirely in terms of market value or vet bills, or with the dollar figure the General

[104 A.3d 913]

Assembly chose, the alternative is complicated, unpredictable, and potentially awkward. The common law normally doesn't distinguish one form of physical property from another—if a tortfeasor damages another's personal property, the victim recovers its economic value. It is not at all uncommon for there to be a gap between a good's economic value and its value to its owner—a low-value piece of artwork or china, for example, might be priceless in sentimental terms because it came from a favorite relative—but the ultimate (and recoverable)

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economic value of these and most other forms of property can be measured objectively, and juries can resolve any factual disputes as to the final value figure. But how does one value a pet? Is a mixed-breed or rescue dog worth less than one with a champion pedigree? Is an older dog worth less than a younger one? Is a dog worth more because it comes from a family with young children, who now have lost their pet? Should juries be in the business of determining whether a dog was a “good dog” or a “bad dog,” whether a dog was well-trained or did tricks, projecting a dog's life expectancy, and putting dollar values on the difference? The General Assembly decided they shouldn't be.

§ 8-205. Marital property - Award

(a)

(1) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.

(2) The court may transfer ownership of an interest in:

(i) a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties;

(ii) subject to the consent of any lienholders, family use personal property, from one or both parties to either or both parties; and

(iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together, by:

1. ordering the transfer of ownership of the real property or any interest of one of the parties in the real property to the other party if the party to whom the real property is transferred obtains the release of the other party from any lien against the real property;

2. authorizing one party to purchase the interest of the other party in the real property, in accordance with the terms and conditions ordered by the court; or

3. both.

(b) The court shall determine the amount and the method of payment of a monetary award, or the terms of the transfer of the interest in property described in subsection (a)(2) of this section, or both, after considering each of the following factors:

(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;

(2) the value of all property interests of each party;

(3) the economic circumstances of each party at the time the award is to be made;

(4) the circumstances that contributed to the estrangement of the parties;

(5) the duration of the marriage;

(6) the age of each party;

(7) the physical and mental condition of each party;

(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;

(9) the contribution by either party of property described in §8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;

(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and

(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.

(c) The court may reduce to a judgment any monetary award made under this section, to the extent that any part of the award is due and owing.

§ 8-201. Definitions

(a) In this subtitle the following words have the meanings indicated.

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(d)

(1) "Family use personal property" means tangible personal property:

(i) acquired during the marriage;

(ii) owned by 1 or both of the parties; and

(iii) used primarily for family purposes.

(2) "Family use personal property" includes:

(i) motor vehicles;

(ii) furniture;

(iii) furnishings; and

(iv) household appliances.

(3) "Family use personal property" does not include property:

(i) acquired by inheritance or gift from a third party; or

(ii) excluded by valid agreement.

(e)

(1) "Marital property" means the property, however titled, acquired by 1 or both parties during the marriage.

(2) "Marital property" includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement.

(3) Except as provided in paragraph (2) of this subsection, "marital property" does not include property:

(i) acquired before the marriage;

(ii) acquired by inheritance or gift from a third party;

(iii) excluded by valid agreement; or

(iv) directly traceable to any of these sources.

We disagree with Husband's contention that the trial court erred in failing to order the sale of the jointly owned property

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after the use and possession period expired. As we explained in Pleasant v. Pleasant, 97 Md.App. 711, 632 A.2d 202 (1993), "In the absence of evidence to the contrary, [Husband and Wife] are presumed to hold the [family home, and] household goods and furnishings as tenants by the entirety. Upon divorce, they then hold such property as tenants in common." Id. at 721, 632 A.2d 202. "[T]he trial judge may[,] ... in the case of property owned by both [Husband and Wife], order that the property be sold and the proceeds divided equally." Id. at 720, 632 A.2d 202 (emphasis added); Md.Fam.Law Code Ann., § 8-202(b)(2) (1991). On remand, the trial court may, in its discretion,[653 A.2d 1029] order the sale of the family home and family use personal property after the use and possession period expires on January 6, 1996. Otherwise, "[a]s tenants in common, either of the parties may petition for a sale of the [property] to recover his or her individual interest." Ward v. Ward, 52 Md.App. 336, 344, 449 A.2d 443 (1982).