When Gay Couple Breaks Up, Who Gets the Pooch?

A tan –– or as fanciers say, “red” –– Basenji hound, the same breed as Stevie, the dog at the heart of this case. | AKC.ORG

A tan –– or as fanciers say, “red” –– Basenji hound, the same breed as Stevie, the dog at the heart of this case. | AKC.ORG

BY ARTHUR S. LEONARD | Douglas Gellenbeck and Michael Whitton, who had a 13-year relationship, bought a co-op studio apartment together on East 11th Street in 2008 and the next year registered as domestic partners 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.

Unfortunately the family broke apart in 2014, with Whitton, behind in paying his share of the co-op costs, moving out. In May 2014, Gellenbeck filed a complaint in New York County Supreme Court claiming that Whitton had not contributed to the costs of maintaining the apartment since July of 2012. Gellenbeck no longer desired to “own or hold the apartment in common” with his ex-partner.

Since the apartment has only one entrance and one bathroom, dividing the apartment in half was not an option, Gellenbeck said, so he asked the court to authorize a sale and distribution of the assets. He asserted that he had paid the initial 20 percent down payment and had, over time, also covered the majority of the expenses, and so should received a majority of the proceeds. In response, Whitton, without legal representation, argued that the apartment could be physically subdivided between the two men.

A studio coop proves less contentious than a Basenji’s best interests

On March 2 of this year, Justice Arthur F. Engoron agreed with Gellenbeck on the disposition of the real estate.

The two men, however, remain in a dogfight over Stevie.

In his complaint, Gellenbeck described Stevie as “a tan, female, mixed-breed, part Basenji dog,” whom he claimed Whitton had given him as a birthday gift. As the “registered owner” for purposes of the required health department license, Gellenbeck said, he should keep Stevie. He asked the court to issue a declaration that he is the owner of Stevie, and a permanent injunction against Whitton claiming any status as the dog’s owner.

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

Apparently moved by both men’s affection 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 effect, Gellenbeck and Whitton would be posed like 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.

Engoron also 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. Since Whitton technically remained a co-owner of the apartment, he should have access to the dog while the issue remained unresolved.

But canine jurisprudence moved more quickly than the Gellenbeck-Whitton dispute was able to. In July, another New York County Supreme Court Justice, Geoffrey Wright, issued an opinion in a dog custody case holding that pets are property, not people. Questions 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 custody cases. The case Wright decided, Szubski v. Conrad, 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 for the man, who was clearly the animal’s owner.

In a new ruling issued on October 26 and published by the New York Law Journal this week, Justice Engoron backed away from his earlier decision. Evidently Wright’s opinion had changed his 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,” an allusion 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 has now 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,” he wrote. “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.”

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 [State] ‘Supreme Court.’”

As part of his lengthy consideration of the question of conferring rights on animals, Engoron noted, a bit defensively, “the Court’s prior ownership of Humphrey 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 that fateful day.

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