A Bone of Contention in Divorce Court

Two years after their divorce, Jennifer Kidwell and Ethan Assal were back in a Montgomery County, Md., courtroom arguing over money and allegations of abuse and neglect, of visitation agreements violated.

Montgomery Circuit Court Judge S. Michael Pincus looked at Kidwell and Assal and asked why they couldn’t resolve these issues on their own.

“I’ll take a deep breath before I say this,” Pincus said from his dais. “It’s because there’s been no visitation with the dog?”

‘I Feel Like Judge Judy’

It was a courtroom scene that even veteran divorce lawyers say they’ve rarely, if ever, witnessed. Cases of couples fighting over who gets Fido usually end with an agreement spelled out in the divorce decree. Once in a while, lawyers say, the fighting gets so bad that the warring parties agree to share custody of the dog.

But rarely, lawyers say, does the squabbling continue to the point where a circuit court judge is asked to enforce a dog custody and visitation order. In this case, the Animal Legal Defense Fund even filed a seven-page friend-of-the-court brief urging the judge to consider the best interests of Sable, a 9-year-old gray keeshond.

“I feel like Judge Judy in this case,” Pincus said, as he slowly shook his head and ordered Kidwell to relinquish Sable for a one-month visit in January.

In Maryland, judges don’t have the authority to grant ownership or custody of marital property--and, as uncuddly as it might sound, that’s exactly how the law views pets.

So if divorcing couples can’t decide who gets what, the judge simply orders the property sold and the proceeds divided. Wanting to prevent selling off old Sparky, lawyers say, most couples will agree out of court who keeps the dog and who visits.

But there’s nothing like the desire to keep a pet to stir the emotions, prompting some couples to offer each other the house, even the Redskins tickets, if only they can have the dog, lawyers say.

Lawyer Leslie Billman said she once let a woman bring her dog to a deposition so her estranged husband could get in his agreed-upon supervised visitation.

“I think in a lot of cases the pet is the substitute for the child,” Billman said.

Kidwell, 33, and Assal, 38, did not have children during their seven-year marriage, but both use the words “beloved child” when they talk about Sable--even though both say they doubt the other means it.

Page 2, Paragraph C, of their divorce settlement notes that “[t]he wife . . . shall be entitled to exclusive use, possession and ownership of Sable” and that “the husband shall be entitled to visitation with the dog, Sable, for one month per year” each summer.

Two additional pages spell out exactly how Assal, who is president of a marketing firm, is to ensure that Sable not run free, inform Kidwell of any medical problems and keep the dog in good health during visits. They arranged to exchange Sable at their veterinarian’s office one mile from the 14-acre Potomac, Md., home that they used to share.

Then came the Beemer incident.

“Tell me why he’s not entitled to receive Sable,” the judge told Kidwell.

Kidwell, who lives in Fauquier County, Va., and recently started an Internet marketing company, propped a framed photograph of the dog on the table. She said she’d subpoenaed witnesses who would testify that her former husband, who still lives in Potomac, had driven with Sable in the trunk of his black BMW on a 90-degree afternoon when he returned the dog after his August 1998 visit-- the last time she let Assal see Sable.

“Is Sable going to testify?” the judge asked with a smile.

Kidwell pointed to the framed photo, noting that Sable is long-haired and fluffy and that she had come home that day lethargic, dehydrated and with diarrhea. Dogs die in hot car trunks, Kidwell said.

Sable Set to Act as Flower Girl

And that wasn’t the only problem, Kidwell said. Sable had gotten loose in her former husband’s care, she said, and needed emergency intestinal surgery after eating her way through a plastic garbage bag.

Kidwell also charged that her former husband had once lost Sable for three days before the fire department rescued her from a storm drainage pipe.

“This dog has a life that should be considered,” Kidwell argued.

The judge turned to Assal. Yes, the dog had gotten out, Assal said, but he’d happily spent $700 for the emergency surgery rather than have Sable euthanized. When Sable became lost, he said, he was the one who spent three days posting signs and looking for her. And, yes, he did take Sable to the vet’s office in the trunk of his car, but he said he never meant to harm the animal.

“The dog likes to ride in the trunk and jumps in the trunk,” Assal told the judge. “It’s better than a crate in the car.”

The ride to the vet took less than a minute, Assal said, and he kept open a small door leading from the felt-lined trunk through the back seats so Sable could get air.

This was about his former wife’s revenge, Assal told the judge. He’d especially wanted Sable to visit this May--a visit Kidwell had denied--because he and his new wife, Martha, had planned for Sable to walk down the aisle adorned with flowers with two flower girls.

In the end, the judge said, Assal had to pay Kidwell the $50,000 he owes her. And Kidwell must let her ex-husband have Sable in January.

Keeping a dog in a hot car trunk was wrong, Pincus said, but as a dog owner himself, he understood how dogs sometimes run off and get into trouble. Assal had always sought medical treatment, the judge noted.

Kidwell says the fight over Sable, which she views as her former husband’s “control issue,” will continue. “He won today, but it’s not over yet,” she said. “This is just the beginning. Sable deserves a friend and a voice, and that’s me.”