Living Separate and Apart Continuously: The Louisiana Supreme Court Relates Disavowal to Divorce in Pociask v. Moseley

Derek Pociask and Kera Moseley were married on October 11, 1997, and welcomed a son into the world only two years later.  Alas, the romance waned, and the couple physically separated on April 30, 2006.  The following year, the district court rendered a judgment of divorce. Two months prior to the divorce, on March 15, 2007, Moseley gave birth to another child, J.M.  Soon after being notified on July 15, 2008, that Moseley had asserted that he is the father of J.M., Pociask filed a petition to disavow paternity pursuant to Louisiana Civil Code article 189 in the Twenty-Second Judicial District Court of Louisiana. After the results of a DNA test revealed that Pociask was not the biological father of J.M., Moseley conceded this fact and admitted that Pociask had a vasectomy prior to the pregnancy at issue.  Moseley countered

Pociask’s motion for summary judgment with her own motion, alleging that Pociask failed to timely file his disavowal action and could not avail himself of the exception to the time limitations set forth in article 189 because the parties did not live separately and apart continuously for 300 days immediately preceding J.M.’s birth.  Pociask and Moseley spent one night together in the matrimonial domicile when Pociask traveled to New Orleans from his home in Pennsylvania to attend his brother’s wedding.

Reading the similar provisions found in article 189 and articles 102 and 103 (the divorce articles) in pari materia, the district court reasoned 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 and granted summary judgment in favor of Pociask.  On appeal, the Louisiana First Circuit Court of Appeal strictly applied the disavowal action articles and reversed the district court’s ruling, rendering judgment in favor of Moseley.  After granting certiorari, the Louisiana Supreme Court held that the phrase “living separate and apart continuously” in article 189 and the divorce articles should be read in pari materia and reinstated the judgment of the district court in favor of Pociask.  Pociask v. Moseley, 2013-0262, pp. 14-16 (La. 6/28/13); 122 So. 3d 533, 542-43.