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When Gay Couple Breaks Up, Who Gets the Pooch?

Posted on: November 10th, 2015 by Art Leonard No Comments

Douglas Gellenbeck and Michael Whitton were domestic partners for thirteen years.  In 2008, they bought a co-op studio apartment together on East 11th Street, and the next year they registered their domestic partnership with New York City.  Some time during their relationship Stevie, a dog, entered their life as well.  Now Stevie is at the center of a heated custody dispute in Gellenbeck v. Whitton, Docket No. 154365/2014, NYLJ 1202741935478 (N.Y. Sup. Ct., N.Y. County, Oct. 26, 2015).

This once-happy family broke apart in 2014.  Whitton, who had fallen behind in paying his share of the co-op costs, moved out.  Gellenbeck filed a complaint in New York County Supreme Court on May 5, 2014, claiming that Whitton had not contributed to the costs of maintaining the apartment since July of 2012, and that Gellenbeck no longer desired to “own or hold the apartment in common” with Whitton.  Since it was a studio with only one entrance and one bathroom that could not be physically divided between the two men as separate apartments, Gellenbeck asked the court to authorize a sale and distribution of the assets, taking into account that Gellenbeck had paid the initial 20% down-payment and had, over time, paid the majority of the expenses, and thus should received a majority of the proceeds. After Whitton had filed his answer to this complaint on his own without legal representation, arguing that the apartment could be physically divided between the two men, Gellenbeck took the logical step of filing an affidavit with the City on June 17 dissolving their domestic partnership.  Although Whitton contested some of this and obtained legal counsel, Justice Arthur F. Engoron agreed with Gellenbeck on the disposition of the real estate in an opinion issued on March 2, 2015 (2015 N.Y. Misc. LEXIS 637).

But Stevie turned out to be a continuing subject of contention.  In his complaint, Gellenbeck described Stevie as “a tan, female, mixed-breed, part Basenji dog.”  Gellenbeck claimed that Whitton had given Stevie to him as a birthday gift, and that Gellenbeck was the “registered owner” in terms of the required license from the health department, so he should keep Stevie. Gellenback asked the court to issue a declaration that he is the owner of Stevie, and a permanent injunction against Whitton claiming any status as Stevie’s owner.

Whitton sharply disputed this, pointing out that he had “adopted” Stevie from a dog adoption agency and, he claimed, had been the stay-at-home partner who had spent more time taking care of the dog.  In effect, Whitten argued it was in the dog’s best interest that Stevie should be his.

Apparently moved by the affection of both men for the dog, Engoron decided in his March 2 opinion, based on a prior state trial court opinion in a similar dispute, that he would make a decision about “what is best for all concerned,” placing the burden on both parties to prove why Stevie would have “a better chance of living, prospering, loving and being loved” in the care of one partner as opposed to the other, in a proceeding that would be similar to warring parents trying to prove that it would be in the best interest of a child to be in the custody of one rather than the other.

Furthermore, Engeron denied Gellenbeck’s request for a preliminary injunction barring Whitton from the apartment and giving Gellenbeck “exclusive right of possession” of Stevie until the case was concluded.  He reasoned that until the apartment was sold Whitton was technically a co-owner, and that until the evidence was presented on the “best interest” issue regarding Stevie, it was not clear that Gellenbeck would prevail.

Since then, however, another New York County Supreme Court Justice, Geoffrey Wright, has issued another opinion in a dog custody case, Szubski v. Conrad (July 13, 2015), holding that pets are property, not people, and so the question of ownership should be decided by reference to property law, and not to the family law principle of “best interest of the child” familiar from the custody cases.  Szubski involved a dispute between a man and his former girlfriend about the ownership of a Doberman pinscher.  The girlfriend claimed it was best for the dog to be with her, but the judge decided with the man, who was clearly the owner of the animal.

In a new ruling issued on October 26 and published by the New York Law Journal on November 10, Justice Engoron backed away from his earlier decision.  He found that attempting to “harmonize” his ruling with Justice Wright’s ruling “would be problematic, if not impossible.”  Evidently Wright’s opinion had changed Engoron’s thinking since March.  “Logically,” Engoron wrote, “the word ‘all’ in the phrase ‘best for all concerned’ must either refer to all humans or to all humans and animals.  Assuming the former, if the courts were to decide cases based on the nebulous ‘best for all concerned’ standard, we would perforce redistribute earth’s wealth in a manner the likes of which hitherto have not been seen.  This might be good, bad, or indifferent, but authority to do so would have to come from the state or federal government, or some higher power.”

He went on to note that Justice Wright “emphasized the difficulty in determining what is best for animals who, after all, cannot exactly tell us what they want.  But what if they could?  Or what if we could determine that on our own?  Are courts obligated to take into account what is best for animals?  That would seem to depend upon whether animals have rights, specifically, the right to have courts take into account what is best for them.  Of course, this is, and arguably has been for some time now, a hot-button topic,” referring to a recent case that held that a court could not issue a writ of habeas corpus to release a chimpanzee from captivity, since animals don’t have constitutional rights.

Engoron now has concluded that “animals do not have rights,” being persuaded by Wright’s opinion as well as the chimpanzee case.  “Evolutionary psychologists would say that membership in the same gene pool confers rights; but much as humans love Stevie, they cannot procreate with her.  Some, including this Court, would say that a Rousseauian ‘Social Contract’ confers rights; but, alas, only human beings are deemed to have contract rights enforceable at law.  Some would say that ‘policy’ confers rights; but policy is for the legislature, law is for the courts.  One could posit that historical antecedents confer rights; but historically, Anglo Saxon law has conferred rights on people, not pets.”

Finally, Engoron observed that some would say that rights are derived from a “Supreme Being,” quoting from the Declaration of Independence.  “Alas,” he lamented, “the drafters equated people with each other, not with animals, and made no mention of the latter being endowed with any right.  If a ‘Supreme Being’ has bestowed rights on animals,” he concluded, “they need to be enforced elsewhere than in ‘Supreme Court.'”

Engoron went on at further length about the consequences of conferring rights on animals, and noted defensively “the Court’s prior ownership of Humprey the basset hound and Wabber the tabby cat, which were beloved beyond all reason.”

“Thus,” he concluded, “Stevie, for all the joy she brings to this world, does not have the right to have a court of law dictate a decision, in whole or even in part, on what is best for her.  Accordingly, this Court simply erred in declaring that a ‘best for all concerned’ standard should be applied to the hearing that still needs to be held in this case.  The correct law is the law of property, and this Court will determine and award possession of Stevie according to that law, and no other.”

The hearing to decide this question will take place on December 10.   Attorney David Wolf of Steven Landy & Associates represents Gellenbeck.  Daniel S. LoPresti represents Whitton.  Since she has no rights, no lawyer has been designated by the court to represent Stevie, whose opinions will not be consulted by the court on December 10.