To a single justice of the Appeals Court, a trial decide had handled Teddy Bear — a Pomeranian acquired by a since-estranged single couple — “as if it were the parties’ child.” Awarding them what was, in impact, joint custody was a bridge too far, she dominated.
But an lawyer for the plaintiff-appellant in Lyman v. Lancerwhich was argued to an Appeals Court panel on Nov. 8, insists he’s looking for nothing greater than a logical extension of longstanding property legislation.
Plaintiff Brett Lyman acquired Teddy Bear in Pelham, New Hampshire, on June 2, 2018. The pup’s full given title was “Teddy Bear Lanser-Lyman,” “Lanser” being Lyman’s girlfriend on the time, Sasha Lanser.
Lyman and Lanser broke up in the summertime of 2021. But in accordance with Lyman’s Appeals Court transient, the pair communicated frequently over the following a number of months about their plan to evenly break up Teddy Bear’s care and companionship.
For his half, Lyman already had expertise sharing possession of one other Pomeranian — Zeus Bear — with a unique former romantic accomplice and figured the association with Teddy Bear would head down the identical path.
But Lyman started to see his time with Teddy Bear dwindle. Then, in January 2022, he obtained a request from Lanser to let Teddy Bear dwell along with her completely so the canine may get acclimated to her new home in Brighton.
Lyman says he agreed to the association — briefly. But by early March, he was writing to Lanser, asking to renew transferring Teddy forwards and backwards between them.
According to Lyman, Lanser initially expressed a willingness to work one thing out however then stopped speaking with him. That prompted Lyman to file a criticism in Middlesex Superior Court containing claims for conversion and breach of implied contract.
Judge Shannon Frison granted Lyman a preliminary injunction, which included a provision requiring the events to trade Teddy Bear each two weeks.
But on Dec. 19, Appeals Court Judge Marguerite T. Grant determined that Frison had “abused her discretion and erred as a matter of law.” Grant vacated the a part of the order that required the events to alternate possession of the canine.
Lyman’s lawyer, Jeremy M. Cohen of the Swampscott-based agency Boston Dog Lawyers, says it was disheartening to see Grant attain for the kid custody analogy, given how strenuously he sought to keep away from drawing that parallel.
Cohen is aware of that he would probably get nowhere attempting to place canines on the identical stage as human beings.
“We’re not trying to create a new legal status [for dogs],” he says.
In his specialised apply through which he handles some 30 pet possession disputes at anybody time, Cohen acknowledges that he and his purchasers would lose credibility in the event that they got here off as too fanatical, arguing, “Dogs are people, too.”
Instead, he accepts that change will probably be incremental. Nonetheless, Cohen fervently believes the legislation wants an adjustment. The present state of the legislation — as seen within the Lyman case — is {that a} “grab-and-go mentality” carries the day too usually.
“People think, ‘As long as I get possession, I’m protected,’” he says.
Indeed, Cohen says he has seen self-help efforts flip violent, with one person punching the opposite to grab a pooch from the opposite’s clutches.
Rather than leaving them to take issues into their very own arms extrajudicially, pet co-owners “need something new,” Cohen says. Lyman’s case, which entails two good canine house owners who every have a relationship with Teddy Bear, even when they now not have one with each other, ought to present the Appeals Court the chance to say what that “something” ought to be.
In quick, Cohen believes that Frison was properly inside the Superior Court’s broad equitable powers to trend the reduction she did — at the same time as he struggles to discover a much less loaded time period than “joint custody” to explain it.
From a authorized perspective, Cohen acknowledges that his stiffest problem often is the dearth of precedent sanctioning the sharing of private property. Cohen factors to the 1992 Supreme Judicial Court case Welford v. Nobrega, et al.through which the court docket acknowledged the equitable nature of co-ownership rights, ordering the events to share the proceeds of a 1986 successful Megabucks lottery ticket value $1.7 million.
In his transient, Lanser’s lawyer, Philip A. Bongiorno of Boston, argues that possession of a home pet by single {couples} or roommates ought to be presumptively decided by documentary proof of possession — on this case, who paid for the canine.
“If the parties co-owned a dining room set together, would the Court order equitable sharing, custody, of the tables and chairs?” Bongiorno asks. “Obviously not. The fact that Teddy is alive is irrelevant to the analysis.”
Bongiorno insists that Lyman can not show his conversion declare, however even when he may, the treatment wouldn’t be for the court docket to set a custody schedule.
“The only remedy in this matter that can be ordered by Judge or Jury is possession to one or the other, or restitution to the Plaintiff for the value of the animal should conversion be found,” he writes.
Bongiorno had not responded to requests for remark as of Lawyers Weekly’s deadline.
Grant cited the 2014 Appeals Court case Irwin v. Degtiarov for the proposition that “Massachusetts law considers animals, including pet dogs, to be property.”
But Cohen counters {that a} nearer studying of Irwinwhich concerned the best way to correctly worth the damages suffered by an injured canine’s proprietor, acknowledged the complexity of the duty earlier than the court docket, “where the property is unusual and where ordinary methods will produce a miscarriage of justice.”
Cohen writes, “It already being established law in Massachusetts that dogs are considered unusual under the law for purposes of calculating damages for their injury, it is logical to consider them unusual, in fact unique, for purposes of determining the appropriate remedy here.”
Cohen’s sense from the oral argument was that, on some stage, the judges appreciated the dilemma confronted by these looking for to vindicate their proper, as co-owner, to proceed to benefit from the relationship that they had constructed with their pet.
Cohen hopes that the query about his shopper that can stick to the judges is, “Where do you want him to go to sort this out?”
“There has to be some way to resolve this,” he says.
