Posted on 05/04/2002 6:51:16 PM PDT by Cagey
Anthony DeSanctis and Lynda Hurley Pritchard got married in 1991. Three years later, they adopted Barney, a 2-year-old, and brought him into their Chester County household.
In 1996, the couple separated. The parting was acrimonious and the testiest issue was how the two would divide time spent with Barney.
Barney, the golden retriever/golden Labrador dog adopted from the SPCA.
For a while, they worked it out. But when Pritchard remarried and moved to Bucks County last year, DeSanctis did not see Barney anymore. He sued Pritchard in Chester County Court, claiming she was keeping Barney from him in violation of their written agreement.
DeSanctis "has become depressed, has lost business, lost sleep and is, otherwise, psychologically harmed by being denied access to an animal he loves like a child, requiring [him] to seek counseling," the suit says. "These are circumstances which any dog lover will recognize."
DeSanctis lost. He appealed, and the case is now in state Superior Court, believed by both sides to be the first time that visitation rights over a dog have reached the appellate level in Pennsylvania. A three-judge panel heard arguments in the case last week.
Both sides say the case, at its core, is a contractual matter over the fact that a dog - unless it has the stature of Lassie or Gidget, the Taco Bell Chihuahua - is, by state law, nothing more than a piece of property.
But a Chester County Court judge interpreted DeSanctis' complaint as a custody battle over the now 10-year-old pooch and dismissed it.
Neither DeSanctis nor Pritchard would discuss the bitter dogfight, which has cost thousands of dollars in legal fees.
John Larason, who represents Pritchard, said the law is clearly on her side.
"Maybe he could have filed a lawsuit and said the dog is worth $25, so you have to pay me $25," Larason said. "But he can't say the dog is unique. If I break up with my wife and I steal the toaster, she can't complain that the toaster was special to her.
"Maybe if there was a van Gogh. Or maybe family photos. But not a dog. The heart of the issue is that there's a gap between what people's feelings are for dogs and what the law says."
When Chester County Court Judge William P. Mahon tossed out the suit in October, he said its wording - with numerous references to custody and visitation - put it outside the court's jurisdiction. Custody battles, Mahon said, are by law limited to children.
"The possession of personal property may not be treated in the manner... reserved for the custody of children," Mahon wrote. "A family [dog] is, irrespective of the love and care lavished upon it by its owners, their personal property... . The notion of judicially supervised custodial arrangements having to do with personal property is... alien to the law."
DeSanctis' lawyer, John Carnes, said his client had asked him not to comment. He argued in his appeal that the case was not a custody battle. Instead, he called Barney, who had cancer surgery in 1999, "a unique piece of property subject to a limited period of existence."
He wants a new agreement that would allow DeSanctis to see Barney.
In December 1996, when the couple separated, Pritchard took Barney and agreed to bring him to Lloyd Park in Downingtown so DeSanctis could spend time with him. It also was informally agreed upon that DeSanctis would get Barney two nights a week.
As the divorce action neared a close in summer 2000, the couple drew up a three-page agreement that addressed the distribution of property. It was, in fact, almost exclusively devoted to how Barney's time would be spent.
"Barney is Lynda's property and she will have full custody," it states. "Tony is granted visitation only in accordance with this agreement," which took effect on Oct. 12, 2000.
It called for Barney to spend the second weekend of the month with DeSanctis, who would pick up the dog at the park precisely at 5:30 p.m. on Friday and return him at 8 p.m. on Sunday, with a 15-minute grace period allowed.
The agreement is quite specific in outlining Pritchard's desire to have no contact with DeSanctis. For instance, when Pritchard brought Barney to the park, DeSanctis was required to "keep a reasonable distance away" from her. She insisted that a third party had to take Barney from Pritchard.
There also is a provision that covers what DeSanctis should do if Barney and a second dog owned by Pritchard named Cubby ran to him before the exchange was completed:
"Tony will walk around the entire perimeter of the park... If Barney or Cubby should go to Tony, he will pet them and continue on."
If Pritchard moved, the pact called for her and DeSanctis to meet halfway to swap Barney. In early 2001, Pritchard remarried and moved to Bucks County and DeSanctis claims he was cut off. Two months later, DeSanctis filed the Chester County suit, saying Pritchard "failed and refused to honor the terms of agreement and has denied... any access to Barney."
Mahon, addressing the lawyers in court, noted that he grew up with dogs and was attached to them. But in the eyes of the law, he said, a pet dog is like a vase or a painting.
"This whole idea of custody and whether or not there is affection or love for the dog, quite frankly, is not relevant," he said.
Taco Bell was mentioned in this story, you know. I assume then that the local Philly area Taco Bell doesn't pass the test? Please don't sue me for suggesting that.
That's not the case with a wife.
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