Pociask v. Moseley

122 So. 3d 533, 2013 WL 3287125, 2013 La. LEXIS 1541
Supreme Court of Louisiana·Decided June 28, 2013·No. No. 2013-C-0262·Published·Cited by 11 cases

Opinion

GUIDRY, Justice.

hln this disavowal action, the district court granted summary judgment in favor of the plaintiff, Derek Alan Pociask, and allowed him to disavow paternity of the minor child, J.M. The appellate court reversed and rendered judgment in favor of the defendant, Kere Moseley, finding the plaintiffs action was prescribed under Article 189 of the Civil Code of Louisiana, and dismissing the action with prejudice. We granted the plaintiffs application for supervisory writs, and for the reasons set forth below, we reverse the court of appeal’s decision and reinstate the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

Kera Moseley and Derek Pociask were married on October 11, 1997, in New Orleans. One child, E.P., was born of the marriage on April 4, 1999. The parties physically separated on April 30, 2006. On March 15, 2007, Ms. Moseley gave birth to another child, J.M. Following a hearing on Ms. Moseley’s rule to show cause on May 14, 2007, the district court rendered a judgment of divorce. On July 15, 2008, Mr. Pociask was notified by the State of Louisiana that Ms. Moseley had asserted he is the father of J.M.

| ¡.Thereafter, on August 19, 2008, Mr. Pociask, hereinafter “the plaintiff,” filed a petition to disavow paternity of J.M. Ms. Moseley, hereinafter “the defendant,” responded by filing a peremptory exception of prescription. In her exception, the defendant asserted that, pursuant to La. Civ. Code art. 189, the plaintiff did not file his petition to disavow paternity within one year of J.M.’s birth.1 Following a hearing, the district court signed a judgment overruling the exception of prescription. On January 20, 2011, the parties entered into a consent judgment, whereby the district court ordered that J.M. submit to a DNA test within ten days. The results of the DNA test revealed that the plaintiff was not the biological father of J.M.

On July 21, 2011, the plaintiff moved for summary judgment under La.Code Civ. Proc. art. 966, asserting that, because he is not the biological father of J.M., he is entitled to summary judgment granting his petition and formally finding that he is not [536] the father of J.M. The defendant countered with her own motion for summary judgment alleging the plaintiff cannot avail himself of the exception to the time limitation set forth in the second paragraph of La. Civ.Code art. 189. She claimed the parties did not live separately and apart continuously during the three hundred days immediately preceding the birth of J.M. The defendant alleged the plaintiff had admitted to returning to the matrimonial domicile in New Orleans on the weekend of May 25, 2006, spending at least one night at the domicile while the |,.¡defendant was present, and that the defendant visited the plaintiff and E.P. in Pennsylvania, at the plaintiffs residence, in June of 2006.

At the hearing on the exception of prescription conducted on October 18, 2010, it was stipulated that the plaintiff, who resided in Pennsylvania, made a visit to New Orleans on or about May 25, 2006, to attend the wedding of his brother. While there, he stayed at the former matrimonial domicile for one night, possibly two; the defendant was present in the home for one night. It was also stipulated that the defendant in June 2006 made a “journey” to Pennsylvania, where the plaintiff lived, to pick up or drop off E.P. It was disputed whether she stayed at the plaintiffs residence in Pennsylvania.

A hearing on the parties’ motions for summary judgment was conducted on October 17, 2011. The defendant conceded the plaintiff was not the biological father of J.M., given the results of the DNA test, and admitted the plaintiff had had a vasectomy prior to the pregnancy at issue. The defendant asserted that Louisiana recognizes dual paternity; that the impossibility of the child not being the plaintiffs biological child is not a relevant inquiry; that the plaintiff knew about the birth of the child and that it was not his, but failed to file his petition within one year of the child’s birth; and that the plaintiff could not avail himself of the suspension exception to the time limitation in Article 189 because he had only lived separate and apart from the defendant continuously for 292 days, given the one night they were present together in the matrimonial domicile in May 2006.

Following the hearing, the district court granted summary judgment in favor of the former husband. In its oral reasons given at the hearing, the district court found that the one night stay at the matrimonial domicile in May 2006 did not interrupt the requisite period of time for the parties to be living separate and apart | continuously. The district court reasoned that the “living separate and apart continuously” language in the article on bringing the disavowal action should be read in pari materia with similar language found in the articles on divorce, La. Civ.Code arts. 102 and 103.2 The court noted that, under the jurispru[537] dence interpreting the divorce articles, short visits did not interrupt the time period in order to obtain a final divorce. On May 14, 2012, pursuant to a remand order from the court of appeal, the district court signed an amended judgment granting summary judgment in favor of the former husband and ordering that he shall be allowed to disavow paternity of the minor child, J.M.

The court of appeal reversed the district court’s ruling and rendered judgment in favor of the defendant, finding the plaintiffs disavowal action was prescribed. Pociask v. Moseley, 12-0440 (La.App. 1 Cir. 12/28/12), 2012 WL 6738168 (unpublished). Citing our decision in Gallo v. Gallo, 03-794, pp. 7-8 (La.12/3/03), 861 So.2d 168, 173-74, the court reasoned it must strictly apply the articles governing disavowal actions. The court of appeal, strictly construing the phrase “living separate and apart continuously” for three hundred days immediately preceding the birth of the child, reasoned that the two visits between the parties resulted in the parties not living separate and apart continuously for the three hundred days immediately preceding the |Bbirth of the minor child. Therefore, the court found, the plaintiffs claim did not fall within the exception to the general one-year time limitation for commencing the disavowal action, that is, within one year of the actual or constructive knowledge of the birth of the child.

We granted the plaintiffs writ application to review the correctness of the court of appeal’s ruling. Pociask v. Moseley, 13-0262 (La.4/1/13), 110 So.3d 590.

DISCUSSION

Free access — add to your briefcase to read the full text and ask questions with AI

Pociask v. Moseley, 122 So. 3d 533, 2013 WL 3287125, 2013 La. LEXIS 1541 (La. 2013).

122 So. 3d 533 (Pociask v. Moseley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Quatrevingt v. State
242 So. 3d 625 (Louisiana Court of Appeal, 2018)
Justiss Oil Co. v. Oil Country Tubular Corp.
216 So. 3d 346 (Louisiana Court of Appeal, 2017)
Shields v. Alvin R. Savoie & Associates, Inc.
214 So. 3d 27 (Louisiana Court of Appeal, 2017)
State v. Jim
162 So. 3d 1270 (Louisiana Court of Appeal, 2015)
State of Louisiana v. Garren Keith Jim
Louisiana Court of Appeal, 2015
Arnaud v. Dies
153 So. 3d 453 (Louisiana Court of Appeal, 2014)
Susan Arnaud, Et Ux. v. Ronald Dies
Louisiana Court of Appeal, 2014
Chesapeake Operating, Inc. v. City of Shreveport
132 So. 3d 537 (Louisiana Court of Appeal, 2014)
Parents of Minor Child v. Charlet
135 So. 3d 724 (Louisiana Court of Appeal, 2013)