Rhode Island Bar Journal Article
My article in the Jan. 2019 RI Bar Journal:
My Ex Took My Pet! - Now What? Replevin as a Possible Remedy.
Practitioners of animal law have likely received the call from a frantic pet owner, upset over not just the departure of a significant other, but far more by the fact the departed also took their pet. This is often an issue on legal assistance sites, such as Avvo, as well. The question is always, “How do I get my pet back?”
Pets are still, in the eyes of the law, mere property. While some states are moving to recognize the increased emotional importance of companion animals, particularly if that animal is injured or killed, Rhode Island still treats animals as chattel property. This determines the remedy available when that animal is taken.
If the couple was married, the matter would be decided as part of the separation agreement. If the animal were particularly valuable, it would properly be listed as an asset on the DR-6 Financial Statement. While the issues that affect all property in a divorce; whether it was a pre-marital asset, a gift, etc., come into play with pets, the pet's ownership can also be allocated by agreement or the court with those other assets.
For non-married couples, there is no such recourse. The dissolution of those relationships, having no formal status, has no formal allocation of the couple's assets.
The first issue is usually locating the pet in question. That itself may be problematic; the departed partner's location may not be known, and/or, they may have hidden the animal. In such cases, an online database search, or even a private investigator may be required to even locate the party, and the pet.
If found, a criminal complaint will almost always be rejected because of the domestic relationship of the parties. Where there is a remotely colorable claim of ownership by the other party, the matter will be declared civil in nature, and the police will not act.
An action for damages may be brought against the other party, if and when located, but the people seeking assistance want their pet back; not money. Therefore, small claims and district court actions for damages provide no remedy.
The recourse which applies is the ancient writ of replevin; the return of the actual goods purloined. This remedy exists in both Rhode Island and Federal law:
§ 34-21-2 District court jurisdiction. – The district court may issue writs of replevin where the goods and chattels to be replevied are valued at five thousand dollars ($5,000) or less, and venue of the action may be in any division of the district court where they were taken, attached or detained. The court may also try the same and award execution therein, adhering in its proceedings, as near as may be, to the forms herein prescribed.
District court actions are brought under District Court Rule 64. Note the dollar limit.
§ 34-21-1 Property repleviable on superior court writ. – Whenever any goods or chattels of more than five thousand dollars ($5,000) value shall be unlawfully taken or unlawfully detained from the owner or from the person entitled to the possession thereof, and whenever any goods or chattels of that value, which are attached on mesne process or execution or warrant of distress, are claimed by any person other than the defendant in the suit or process in which they are attached, the owner or other person may cause the same to be replevied by writ of replevin issuing from the superior court.
Federal District Courts also hear replevin cases under Federal Civil Procedure Rule 64, applying state law:
Fed.R.Civ.P. 64 makes replevin available in federal court. Murphy v. Foster, 518 F. Supp. 2d 292 (D.Me.2007).Pursuant to Rule 64, replevin is available "under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought. . . ." Replevin is "available to persons claiming possession of goods or catties either wrongfully taken or wrongfully detained. Nothing more than the right of present possession, founded upon a general or special ownership of the goods or chattels, is necessary to enable a plaintiff to maintain the action."
To bring a replevin action, the plaintiff must provide the following:
1. A precise description of the property; i.e, the pet(s) in question;
2. A stated value of the pet(s);
3. The presumed location of the pet(s);
4. A statement that the Plaintiff is the lawful owner of the pet(s);
2. That the pets were taken unlawfully; i.e., without the plaintiff's consent; and
3. Defendant is in wrongful possession of the said pet(s).
If those three requirements are met, the issues are:
1. The value of pet(s), which determines if it is District or Superior Court;
2. Venue; and
3. Service, which requires knowing where the other party decamped to.
Rhode Island Gen. Law § 31-21-9 sets forth the Form of Writ of Return and Restoration; the Superior Court includes Writ of Replevin in its fillable forms library.
Other than finding and serving the absconding party, the challenge in such cases is proof of ownership. This is particularly true if the other party claims the pet was a gift.
Likely indicia of ownership are:
1. Adoption papers from the shelter;
2. Purchase and bloodline documents from the breeder;
3. Veterinarian records for the animal;
4. Town records for dogs, cats, and ferrets, showing proof of rabies shots; and
5. Correspondence, usually emails or texts, between the parties.
There may also be credit card statements from pet supply stores, etc., but these lack the credibility of documents from where the animal was obtained from, the vet who treated the animal, or the municipal records showing ownership.
If your client failed to have their dog, cat, or ferret duly inoculated against rabies, there is a problem greater than not having a municipal record of ownership. That failure constitutes a misdemeanor under Rhode Island law. Violators may be:
...charged with a misdemeanor and fined not less than two hundred dollars ($200) nor more than five hundred dollars ($500) for each offense or be imprisoned for not less than ten (10) days nor more than thirty (30) days and/or be subject to confiscation of the animal(s) which is/are the basis of the violation.
If your client failed to comply with this statute, there will be no municipal record to support the claim of ownership. It is also likely that such a client failed to even take the pet to a vet, meaning that source of documentation is also unavailable.
The jurisdictional and evidentiary issues are those common to most litigation, particularly breach of contract. The real challenge to such lawsuits is that obstacle to most such litigation: Cost. There is no provision in the replevin statues for recovery of costs, still less legal fees. Unless the animal in question is of show/breeding stock, the free-market value is minimal.
The real value of the animal is its emotional worth to the putative owner. This is highly variable. I represented a client in an international replevin case; a dog “rescued” from Aruba. The legal fees and direct trial expenses went into five figures, including an appeal. That does not include the airfare and related expenses for the two trips from Aruba.
Very few people are prepared to spend even a tenth of that on a replevin action, particularly if the absconding party is outside the jurisdiction - if found at all. This is why one rarely hears of such cases being brought. As with veterinary malpractice actions, the low value of the pet, being mere chattel property, makes them economically unfeasible.
https://law-journals-books.vlex.com/vid/my-ex-took-my-753135321