Winning Appeal: Dog “Custody”

by | Nov 15, 2023

There may be no truer example of the adage “no case too small” that this firm’s most recent appellate win in Franklin v. Palmer. Our client owned a small, American Breeder’s Club certified dog before she entered into a relationship with the Defendant in this case. By all accounts, both parties grew emotionally attached to the dog, which of course raised an issue when their relationship ended. For a period of time, the dog spent time with both parties independently, much as a child would in a divorce case. Eventually the Defendant refused to return the dog, insisting that our client had gifted it to her.

While the relational contours of this case strongly echoed a child custody case, for purposes of the law the dog is merely property. The central question then became whether or not our client had in fact indicated to the Defendant that she was letting him keep the dog permanently, or instead whether she was only allowing him to have a “visitation.” Both parties testified, giving unsurprisingly different accounts. After our client prevailed in small claims court, the Defendant initiated a trial de novo (meaning a fresh trial-level proceeding) in District Court. That Court reversed the small claims court decision and concluded that the Defendant had in fact been gifted the dog. The District Court’s order, however, indicated that it reached this decision upon concluding that our client had not proved that she had not made a gift of the dog. On appeal to the North Carolina Court of Appeals, we successfully argued that the District Court had switched the burden of persuasion. Our client should not have been required to prove the lack of a gift; the Defendant should have been required to prove the existence of a gift.

Click on the case title for the full text of the decision: Franklin v. Palmer

In case you’re wondering just how cute this breed of dog must be in order for two people to expend this much effort to recover it, here’s an informational website:

Miniature Dalmatians

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