R.I. high court rules in dispute over dog visits

PROVIDENCE — After 23 years of marriage, one issue brought a divorced Johnston couple to the Rhode Island Supreme Court:

Visitation rights with the dogs.

Diane Giarrusso, who now uses her maiden name, Diane Marolla, appealed to the state's highest court after a Family Court judge ordered her to allow her ex-husband, Paul Giarrusso, host Winnie, a chihuahua, and Marox, a greyhound, for 48-hour visits Tuesday through Thursday mornings. 

"Paul enjoyed his weekly visitation with Marox and Winnie from October 2016 until the end of March 2017, when this simple arrangement went awry and Diane unilaterally ceased allowing the weekly visits," Chief Justice Paul A. Suttell wrote for the court in a decision announced this week.

Jesse Nason, a Cranston lawyer who represented Diane, said the case is representative of a trend he and other lawyers are seeing in divorces: "more and more cases where parties are having disputes about the pets."

As part of their divorce, the couple entered a Marital Settlement Agreement that gave Diane "all right title and interest" to the dogs, wrote Suttell, who referred to the former couple by their first names to avoid confusion. Paul could take the dogs to his Johnston home from 8 a.m. Tuesdays until 8 a.m. Thursdays. The couple don't have children. 

When Diane, who now lives in Warwick, stopped letting Paul take the dogs, he filed a motion with the Family Court, asking it to order Diane to comply with the visitation schedule. Diane objected, "claiming that Paul had not properly cared for the dogs when they were with him and had attempted to keep the dogs away from her, thereby breaching" the separation agreement, wrote Suttell. "Diane sought to enjoin and restrain Paul from having any time with the dogs."

At a Family Court hearing on Dec. 4, 2017, "She testified that Marox returned from one visit with one of his claws damaged, hanging and bleeding. Marox returned from another visit with a 'huge bubble on his lip.' ”

Paul, meanwhile, "testified that he heard about the damaged claw for the first time while in court and that the bubble on Marox’s lip had appeared while he was away for a two-week work-related trip." 

"According to Diane, the final straw for her occurred on March 29, 2017, the last day she allowed Paul his visitation with Marox and Winnie," Suttell wrote.

On that afternoon, Paul contacted Diane because the dogs were "acting strangely and Winnie was whimpering," the court wrote. After a lot of conversation and texting, Diane ultimately agreed to pick up both dogs and take them to the veterinarian, but when she arrived at Paul's house, Marox was missing.

Paul testified that he'd let the dogs out to relieve themselves and thought they'd both returned. What followed was a stressful 1½-hour search involving a Facebook post, friends, neighbors and family.

Diane testified that she “was so upset and hysterical” during the search effort that she “was puking on the side of the road,” the Supreme Court noted in its decision. Paul was crying.

"Eventually, Paul found Marox, who had apparently been in his house the entire time, stuck in a closet," Suttell wrote.

Despite Diane's belief that Paul had hidden the dog in the closet to upset her, the Family Court judge, Patricia K. Asquith, ruled in Paul's favor, and ordered Diane to let Paul have the dogs Tuesdays through Thursdays, as spelled out in their separation agreement.

"The hearing justice also found that both Paul and Diane loved the dogs and wanted to care for them and that Paul always acted in good faith with respect to the dogs," Suttell wrote.

Judge Asquith also awarded attorney's fees to Paul in the amount of $5,248.70.

Diane decided to appeal to the Supreme Court. But that court rejected her argument that Judge Asquith had erred and the separation agreement was unfair.

Paul Giarrusso was "delighted" with the high court's ruling, said his lawyer, John L. Quigley Jr. of Providence. He said it was unfortunate that his client had to spend so much time fighting for his right to spend time with the dogs.

"In my whole marriage I never though she'd do something like this," Giarrusso said in an interview with The Providence Journal. "She harmed the dogs by not letting them see me."

Giarrusso is a referee and often takes the dogs to games with him. He says athletes and fans love seeing the dogs and sometimes treat them as mascots.

While the issue was being contested, friends would sometimes ask him why he didn't just get new dogs. He said he wouldn't think of it.

"It's just like having a kid," he said. "You're not just going to get rid of your kid. These dogs are just like my kids."

While the tale of Winnie and Marox might sound like a custody case involving children, it isn't — at least not in the eyes of the Rhode Island courts, according to Nason.

It was a contract case, he said, with the judges weighing whether the separation agreement had been broken. In divorce cases, pets are treated as "chattel," property, no different from a couch or a computer, according to Nason.

"If you're dealing with children, you're dealing with the best interests of the child. Animals aren't treated like that," he said. "I'd like to see legislation where animals are treated differently."

Diane Marolla told The Journal she appealed to the Supreme Court because she thought the Family Court judge's decision was flawed. She still believes Paul purposely hid Marox in the closet so she'd think the dog was missing, she said. "That's a pretty crazy, cruel thing to do."

Marolla said she would also like to see the law changed, so pets are treated as more than property. She was disappointed with the court's decision.

"They upheld the settlement," she said, "which means I have to continue to share custody with Paul and just hope for the best." 

— jperry@providencejournal.com

(401) 277-7614

On Twitter: @jgregoryperry