Wednesday, April 17, 2019

A Pyrrhic Victory In The Battle Over Marox And Winnie

The Rhode Island Supreme Court dealt with the fallout of a 23-year marriage that ended

The parties to this appeal are former spouses who, in the written terms of their divorce, had agreed that the plaintiff would have full ownership and control of the two dogs they had acquired during their marriage, but that the dogs would spend two days each week (Tuesday to Thursday) with the defendant.  After a few months, the plaintiff withheld the dogs from their weekly visitations with the defendant, and the defendant sought a court order to enforce the agreed-upon schedule.  The plaintiff also filed a motion for relief, claiming that the defendant had not been properly caring for the dogs while they were in his control; she requested that the Family Court find the relevant term of the Marital Settlement Agreement (MSA) to be inequitable and restrain the defendant from having any further time with the dogs.  After a daylong hearing, the Family Court justice found that both parties loved the dogs and wanted to care for them and that the defendant had always acted in good faith with respect to the dogs.  The Family Court justice granted the defendant’s motion for relief and ordered the parties to continue with the schedule set out in the MSA.
The plaintiff appealed from the order, arguing that the Family Court justice had misconceived material evidence before her, was clearly wrong to conclude that the defendant had acted in good faith, was clearly wrong to conclude that the MSA was not inequitable as written, and that she erred by not reforming the MSA.  The Supreme Court held that the Family Court justice neither misconceived the evidence nor was clearly wrong in her findings of fact.  The Court also held that it was not inequitable to enforce the visitation term in the MSA as written, and, therefore, affirmed the order of the Family Court. 

The objects of affection

Paragraph fourth of the MSA gave Diane “all right title and interest in and to [the two dogs:] the greyhound ‘Marox’ and the Chihuahua ‘Winnie.’ [Paul] [was] permitted to take the dogs for visits from Tuesday morning at 8 a.m. through Thursday morning at 8:00 a.m.”

All went well for about six months

Diane claimed that Paul had not properly cared for the dogs when they were with him and had attempted to keep the dogs away from her, thereby breaching the MSA. Diane sought to enjoin and restrain Paul from having any time with the dogs.

Evidence at hearing

She testified that Marox returned from one visit with one of his claws damaged, hanging and bleeding. Marox returned from another visit with a “huge bubble on his lip.” Diane took Marox to the vet both times. According to Paul, the MSA gave Diane complete control over the care of the dogs, such that he could not take them to the vet or make any decisions about their care. He testified that all he could do was play with them. He also testified that he heard about the damaged claw for the first time while in court and that the bubble on Marox’s lip had appeared while he was away for a two-week work-related trip.

According to Diane, the final straw for her occurred on March 29, 2017, the last day she allowed Paul his visitation with Marox and Winnie. That afternoon, Paul had contacted Diane because the dogs were acting strangely and Winnie was whimpering. Paul testified that he knew something was wrong with Winnie because he “let out a cry” when Paul picked him up to put him on Paul’s bed.  Paul called Diane and held the phone close to Winnie so Diane could hear the tone of the whimper. The erstwhile spouses argued through text messages about whether Diane would pick up only Winnie to take him to the vet or whether she would pick up both dogs because, according to Diane, the dogs became anxious when they were separated. Diane and Paul eventually agreed that Diane would pick up both dogs so she could take Winnie to the vet.

When Diane arrived at Paul’s house, however, Marox was missing. Paul testified that he had let the dogs out to relieve themselves and he thought both dogs had returned inside the house, but then he could not find Marox.  Diane testified that Marox’s disappearance was posted on Facebook and that she, friends, and neighbors spent an hour and a half looking for the greyhound. Paul testified that his sister helped in the search as well. Diane testified that she “was so upset and hysterical” during the search effort that she “was puking on the side of the road.” Eventually, Paul found Marox, who had apparently been in his house the entire time, stuck in a closet. Paul had been tipped off by Winnie, who was sitting outside the closed closet door. According to Diane, when she saw Marox, the dog was in Paul’s arms, “violently shaking, like it was traumatized.” Diane testified that she “was already hysterical at that point[,] [but] then [she] went right over the top, screaming and yelling and swearing at the top of [her] lungs.”

Paul also testified that he was emotional on March 29, crying over Marox’s disappearance both before Diane arrived and throughout the search for Marox. He stated that he had not tried to trick Diane by hiding Marox in a closet and then claiming Marox had run off, and that he had been genuinely confused because, after he had spoken with Diane on the phone, he had let the dogs out to relieve themselves and thought that both dogs had come back inside. He testified that he had tried to see the dogs in the weeks following March 29, but Diane had not responded to his communications. During his testimony, Paul’s distress about the litigation over the dogs was palpable.

At the end of the hearing, Diane argued that the hearing justice should withdraw the court’s approval of the MSA because, in light of the incidents described during the testimony, the MSA provision allowing Paul weekly visitation was inequitable. For his part, Paul argued that Diane had breached the terms of the MSA, which she had effectively admitted when she stated that she had not allowed him to see the dogs since March 29.

Diane lost and appealed

Diane contends that, because the dogs are chattel, Paul had an obligation to return the dogs to her in an undamaged condition. Because he did not meet this obligation, she asserts, allowing Paul to have the dogs two days a week is inequitable. Diane further argues that, pursuant to Gorman v. Gorman, 883 A.2d 732 (R.I. 2005), the hearing justice should have withdrawn the court’s approval of the MSA and reformed the MSA.   Paul briefly responds that the hearing justice did not either overlook or misconceive any of the testimony she heard or evidence she reviewed.

Winners can lose

As Paul points out, his victory in this case may be pyrrhic because of Marox’s and Winnie’s advanced ages. Some of us are reminded of the remark that: “Dogs’ lives are too short. Their only fault, really.” Agnes Sligh Turnbull, The Flowering: A Novel 69 (Houghton Mifflin Company 1972).

If they had had children? (Mike Frisch)

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