Conte v Conte

[*1] Conte v Conte 2023 NY Slip Op 50409(U) Decided on April 28, 2023 Supreme Court, Dutchess County Rosa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 28, 2023
Supreme Court, Dutchess County

William Conte, Plaintiff,

against

Teresa Conte, Defendant.



Index No. 52912/22


Rory K. Brady, Esq.
160 Greenwich Avenue
Goshen, NY 10924

Stevan A Nosonowitz, Esq.
PO Box 671
Pleasant Valley, NY 12569 Maria G. Rosa, J.

Pursuant to DRL §236(B)(5)(15), in awarding possession of a companion animal in a divorce action the court shall consider the best interest of such animal. On April 18, 2023 a hearing was held to determine custody of the parties' dog, "King". At the end of the hearing, Defendant's attorney handed up print-outs of law he found relevant to this determination. Plaintiff's counsel was given until April 28, 2023 to do the same, if he deemed any further law relevant, and he did not.

The parties to this divorce action have been living apart since July 17, 2022 when the plaintiff (the "husband") was directed to vacate the marital residence pursuant to an [*2]order of protection in favor of the defendant (the "wife"). At that time, the parties had two dogs: "Ruby", a miniature Pinscher, and "King", the Doberman Pinscher that is the subject of this case.

On April 11, 2018, the parties obtained King when he was 14 weeks old. The husband purchased King for $800.00 as a birthday gift for the wife who testified that she always wanted a Doberman Pinscher.King is licensed and microchipped to the wife. The husband commenced this divorce action on September 12, 2022. Both Ruby and King remained with the wife in the former marital residence until September 16, 2022 when the husband went to the marital residence with a New York State Trooper and took possession of King. Unfortunately, Ruby died unexpectedly in December of 2022.The wife only saw King, over the husband's objection, after this court ordered the husband to allow the wife to share time with King on Tuesdays and Thursdays from 7:30 a.m. to 12:30 p.m. with exchanges to take place at the Hyde Park Police Station.

The husband has violated this court's order twice by failing to bring King to the Hyde Park Police Station on March 21, 2023 and on April 18, 2023 at 7:30 a.m. Both were days when the parties were scheduled to appear before this court, at 10:15 a.m. and 11:00 a.m., respectively. The husband has brought King to every court appearance, and offered no excuse for failing to comply with this court's order.

King appears to be an obedient, happy, loving dog. It is obvious to this court that both parties love King and that he is attached to both. However, it also appears that the wife is more aware of what is in King's best interest and is more willing, when appropriate, to put King's interest before her own. For example, while King was residing with the wife at the former marital residence after the parties' separation, the wife did allow King to spend time with the husband on at least two occasions. The husband, while equating his love for King to that for a child, had been unwilling to voluntarily share King with the wife, even at the court's requests, thereby resulting in the court order made February 7, 2023 in open court.Even then, the husband violated that order twice. As of the hearing held April 18, 2023, the husband remained unwilling to let King visit with the wife overnight, although he did offer to have King with her for two to three full days each week.

Neither party expressed any concern about King's well-being while in the other's care, with one exception.The wife is concerned that the husband takes King to crowded public places, such as to a bar or restaurant. While the court is not an expert on dogs, it does seem that exposure to crowds and noise and other distractions and/or disturbances creates the potential for King to be injured or to become agitated. That is not in King's best interest.

There were only two witnesses who testified at the hearing, that is both parties. The husband testified first, as follows. He is 59 years old, born May 31, 1963."The defendant is trying to take my service dog away from me."King is a six year old service dog. The husband purchased him for $800.00 cash from someone who was [*3]working on the parties' garage floor when King was 10 to 12 weeks old.The former marital residence is located at 54 Bella's Way in Poughkeepsie. The parties have owned several dogs including a miniature Pinscher "Ruby" who was five years old when they got King. The parties went together to pick King up. At that time the husband had been retired for one year and testified that King never left his side. He testified that he trained him using a "vibration technique" and taught him to sit, stay, and get in the car. The husband then obtained a professional trainer. "Josh" from "Fearless Canine" came for two three-hour visits, first to evaluate if King could be a service dog, and second to work on discipline. The purpose of the service dog status was so they could take King everywhere with them.The husband testified that King had regular vet appointments and had to have surgery on his intestines approximately one and a half years ago, that King got shots, that he has been treated for Lyme disease, and that he is on a strict diet.

In evidence as Plaintiff's Exhibit 1 is a copy of King's purported certification as a "service dog". There is a QR code on this certification card which leads to a website for the Americans with Disabilities Act. As it relates to a service animal, the ADA specifically states that "service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person's disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA." The plaintiff testified that he has been seeing Dr. William Skojec, a psychologist, since 2017 or 2018. He did not provide responses to discovery made regarding his treatment with Dr. Skojec. The husband acknowledged that between the date of separation and when he took King from the marital residence in September, he saw King a few times. He testified that Ruby unexpectedly passed away in December. He testified he received the certified service dog identification card from the "American Dog Association" after submitting a letter from his therapist.This court could not locate the American Dog Association on the internet.

Plaintiff's Exhibit 2 in evidence consists of 16 photographs of King at various indoor and outdoor locations, at play and at rest. The plaintiff testified "I'm living on the streets". This raises a concern about consistency in King's life. The husband testified that the parties decided to have King professionally trained when they realized he had separation anxiety.He said King would look for them when King was left home without the plaintiff and defendant.

The plaintiff testified that it was the defendant who purchased the service vest that King wears, from the internet. When asked what proof he has that King is a service dog other than the card, the husband testified "I have documents somewhere." He acknowledged that no such documents were produced in discovery even though they were demanded. The husband acknowledged that both he and his wife are dog lovers who love King and enjoy spending time with him and that King is attached to both of them. He did not testify as to any reason why King cannot be away from him overnight.

The husband testified that King was purchased in March of 2018, that the wife's birthday is April 1, but his testimony fell short of admitting that King was purchased for her as a birthday gift. He acknowledged that they went to see King together and decided together to bring him home. He acknowledged that he enjoys hunting and other outdoor activities and has been away overnight on several occasions to hunt and to look at property in Georgia, and that King stayed home either with the wife or with the parties' daughters for as long as one week at a time. He was out of the marital residence for two months while King resided solely with the wife. The husband agrees that it is important for King to have a relationship with the wife.Although he testified that "the dog is my life, when he is not with me I'm on the phone with my therapist four hours per day", he was not able to provide any proof regarding this time with the therapist. He testified "he is my therapy dog" but that he would be okay with the wife having King two to three full days each week. According to the plaintiff, a therapy dog and a service dog are the same.As to his disability, the husband testified that he has spinal, neck, hip and shoulder injuries, all work related "occupational disease".He was a union electrician.

The defendant's testimony was as follows. King was a birthday gift to her at 14 weeks old on April 11, 2018. There was a laborer at their house who told them that he had a puppy available for purchase. The plaintiff said "let's go see him and I'll get him for your birthday." The wife testified that she told the husband that if she ever got her dream dog, a Doberman Pinscher, she would name him King.The wife posted on Facebook that the husband gave her King as a birthday present.She testified that King's adjustment to their home and to Ruby were fine, that King ate, drank and played like a normal happy puppy and that both parties played with him. She testified that she was the primary person who cared for King taking him for vaccines, taking him to the vet when he didn't feel well, taking him for a CT scan, for his surgery for the block in his intestines, picking him up, sleeping with him downstairs for several nights because he couldn't go upstairs after his surgery, and that the plaintiff did not get involved in any of that. She testified that the husband only took King to the vet one or two times and that she paid the surgery bill. She testified that King was soon back to his normal self and his normal diet and was "free fed", and that he ate normally between July 17, 2022 when the husband was out of the marital residence until the husband retrieved King September 16, 2022.

The defendant testified that King has never nipped at or bitten anyone but has growled several times including when children were teasing him outside of a store, at someone in "Tractor Supply" who came around into their aisle, and that on one occasion King growled at the plaintiff and that the plaintiff hit King with a closed fist in the thigh. She described the two training sessions as brief, one and a half hours each, the first for an assessment and the second for training King only about sitting and staying. She testified that to her knowledge the plaintiff never told the trainer that the plaintiff had a disability. She said the training took place when King was two and a half to three years old. She is not aware of any training King has had to address any disability of the plaintiff. She testified that King is absolutely not qualified as a service [*4]dog.

She testified that the plaintiff went to Oneonta each year for Thanksgiving week, and that King stayed with her during those times for all the years it occurred which was from when they got King until September of 2022. They went to Georgia for a week to look at houses and King stayed home with their two daughters. Defendant testified that both King and the plaintiff were fine during these separations.

On July 17, 2022 the defendant obtained an order of protection against the plaintiff from the Dutchess County Family Court, and the Plaintiff had to move out. King remained with her until September 16, 2022. She did let the plaintiff see King on two separate occasions, once when King went with their daughter to visit the plaintiff and another time when King spent a weekend with the plaintiff in Oneonta. She testified that King is very important to both parties and they both love King very much and that King loves both of them. The wife testified that from September 16, 2022 until February 9, 2023 she did not share any time with King. It was only due to this court's order of February 7, 2023 made over the plaintiff's objection that she was finally able to spend time with King. She discussed the two incidents when Plaintiff failed to show up at the Hyde Park Police Station with King.

Defendant's Exhibit B in evidence consists of 12 photographs of King, depicting him as Defendant described, as a "good, happy, playful, loving dog".The defendant testified that she works 12 to 15 hours per week for a tax preparer, Mondays, Fridays and Saturdays from 9:30 a.m. until 2:00 or 2:30 p.m. and that she does not work Tuesdays, Wednesdays, Thursdays or Sundays. She has asked this court to grant her time with King from Tuesday mornings at 7:30 through Friday mornings at 7:30 (including overnights) with exchanges at the Hyde Park Police Department. This would also reduce the number of exchanges from four to two.

The wife testified that it was the husband who purchased the vest that states that King is a service dog, in 2020, and that she had nothing to do with it. She testified she was present on many occasions when they went out with King with the vest on. She testified that she objects to King wearing that vest as she does not believe he is a service dog. She describes the two orders of protection, one which remains in place for up to two years, one from the Hyde Park Police Department where the plaintiff pled to disorderly conduct, and the other from the Dutchess County Family Court which order was entered following the plaintiff's default in that case. The defendant acknowledged that the marital residence will be sold in the divorce.

Defendant's Exhibit C is evidence consists of two photographs of Facebook posts about King as a birthday gift from the husband to the wife. Defendant testified that King is licensed and microchipped to her, and that she has serious concerns about King being in crowded places, such as bars or restaurants, with the plaintiff. She is concerned that King may become agitated to the point where he could bite someone in which case not only could King's life be at risk but she could be sued.

Based upon New York State law and the Americans with Disabilities Act, (see Civil Rights Law §47-b[4] and 28 CFR 36.302[c]), this court finds that King is not a service dog as defined by those statutes. The court does not find this relevant to the determination of custody and timesharing between King and the plaintiff and the defendant other than with respect to consideration of separating King and the plaintiff overnight. The court has been given no proof of any disability on behalf of the plaintiff that would preclude the defendant spending time with King overnight nor that would demonstrate a detriment to the plaintiff or King if they are separated overnight.

"In determining the best interests of a companion animal under DRL §236(B)(5)(15), the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal's day-to-day life; the availability and willingness of each party to care for the companion animal; each party's involvement in health and veterinary care decisions; the quality of each party's respective home environment; the care and affection shown towards the companion animal; and each party's fitness and caretaking abilities. No single factor is dispositive."L.B. v. C.C.B. 77 Misc 3d 429 [Kings County Supreme Court, 2022]. Both parties have been involved in King's life, although the wife has been more involved in his medical care. Both parties are available and willing to care for King. The husband is retired and testified he is always available. There is no question that the wife's home environment is of better quality as it is more stable, based upon the husband's characterization of his living arrangements as transient. However, both parties' living arrangements are temporary since the marital residence will likely be sold. While the wife's testimony that the husband hit King is troubling, as was his apparent anger at having to turn King over to the wife in court on March 21, 2023 when he ripped the service vest off of King and threw the leash to the wife's attorney, the Court is giving the husband the benefit of the doubt in finding that this behavior appears to be aberrational, especially since the wife is not concerned about the husband's treatment of King. Accordingly, it is hereby

ORDERED that based upon the testimony and the considerations set forth above, and as the individual to whom King is licensed and microchipped, the Court holds that the defendant, Teresa Conte is the owner and primary caretaker of King. Fortunately, the court has not been put in the position of having to choose between the plaintiff and the defendant as King's sole physical custodian. The court is instead awarding the time-sharing schedule requested by the defendant which the court finds is in King's best interest and which seems the most fair solution to timesharing between these parties who both obviously love King. Therefore, it is hereby

ORDERED that King shall be with the plaintiff husband, William Conte from Friday mornings at 7:30 a.m. until Tuesday mornings at 7:30 a.m. every week (including overnights), without regard to court dates, holidays, or other occasions. It is further

ORDERED that King shall be with the defendant wife, Teresa Conte every [*5]Tuesday from 7:30 a.m. through Friday at 7:30 a.m. including overnights, commencing May 2, 2023, again without regard to court dates, holidays, or any other occasion. All exchanges of King shall continue to take place at the Hyde Park Police Station. It is further

ORDERED that except in the event of an emergency, the wife shall be responsible for bringing King to his veterinarian appointments. If there is a medical emergency regarding King while he is in the husband's care, the husband shall immediately have the wife notified by text or phone call from a third party. It is further

ORDERED that this court retains jurisdiction of this matter throughout the divorce action, and after. If the husband (or either party) fails to comply with this order, he (or she) risks losing the right to share time with King. The Court hopes that the husband will reconsider whether it is in King's best interest to be in crowded places including bars and restaurants, and that both parties will always endeavor to do what is in King's best interest.

Counsel for the parties had indicated that this was the most difficult aspect of the case to resolve. It is therefore this court's hope that the financial aspects of this case may be resolved without further court intervention. The court is setting a further compliance conference date as well as a deadline for the filing of the note of issue. Please refer to Court Attorney Michael Frascarelli's letter of February 7, 2023 regarding documents due in discovery. The note of issue shall be filed on or before May 31, 2023. A compliance conference is hereby scheduled for May 31, 2023 at 9:15 a.m.

The foregoing constitutes the decision and order of the Court.

Dated: April 28, 2023
Poughkeepsie, New York
ENTER:
MARIA G. ROSA, J.S.C.