Opinion
NUMBER 2012 CA 0440
12-28-2012
DEREK ALAN POCIASK v. KERA MOSELEY
Kermit L. Roux, III New Orleans, LA Lila Molaison Samuel George Read Coleman Toni G. Hurley Gretna, LA James E. Moorman, III Kasi Brannan Covington, LA Counsel for Plaintiff/Appellee Derek Alan Pociask Counsel for Defendant/Appellant Kera Moseley Counsel for Defendant/Appellee J.R. Moseley
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Suit Number 2008-14420
Honorable Mary C. Devereux, Presiding
Kermit L. Roux, III
New Orleans, LA
Lila Molaison Samuel
George Read Coleman
Toni G. Hurley
Gretna, LA
James E. Moorman, III
Kasi Brannan
Covington, LA
Counsel for Plaintiff/Appellee
Derek Alan Pociask
Counsel for Defendant/Appellant
Kera Moseley
Counsel for Defendant/Appellee
J.R. Moseley
BEFORE: CARTER, C.J., GUIDRY, AND GAIDRY, JJ.
GUIDRY , J.
In this disavowal action, the defendant, Kera Moseley, appeals from a judgment of the trial court in favor of plaintiff, Derek Pociask granting his motion for summary judgment and allowing him to disavow the paternity of J.M. For the reasons that follow, we reverse and render.
FACTS AND PROCEDURAL HISTORY
Kera Moseley and Derek Pociask were married on October 11, 1997, in New Orleans, LA. The parties had a child, E.P., on April 4, 1999. Thereafter, the parties physically separated on April 30, 2006, On March 15, 2007, Moseley gave birth to another child, J.M. Following a May 14, 2007 hearing, the trial court rendered a judgment of divorce. On July 15, 2008, Pociask was notified by the State of Louisiana that Moseley had asserted that he is the father of J.M.
Thereafter, on August 19, 2008, Pociask filed a petition to disavow paternity. Moseley responded by filing an exception of prescription, asserting that pursuant to La. C.C. art. 189, Pociask did not file his petition to disavow paternity within one year of J.M.'s birth. Following a hearing, the trial court signed a judgment denying Moseley's exception of prescription. On January 20, 2011, the parties entered into a consent judgment, whereby the trial court ordered that J.M. submit to a DNA test within ten days. The results of the DNA test revealed that Pociask was not the biological father of J.M.
On July 21, 2011, Pociask filed a motion for summary judgment, asserting that because he is not the father of J.M., he is entitled to summary judgment granting his petition to disavow paternity and formally finding that he is not the father of J.M. In response, Mosely filed a motion for summary judgment and incorporated memorandum, opposing Pociask's motion for summary judgment and asserting that Pociask cannot avail himself of the second paragraph of La. C.C. art. 189, which provides that prescription does not begin to run against a husband until he is notified in writing that a party in interest has asserted that he is the father of the child, because the parties did not live separate and apart continuously during the three hundred days immediately preceding the birth of J.M. Moseley asserted that Pociask admitted returning to the matrimonial domicile in New Orleans on the weekend of May 25, 2006, spending at least one night at the domicile while Moseley was present, and that Moseley visited Pociask and E.P. in Pennsylvania in June of 2006.
Following a hearing on October 17, 2011, the trial court singed a judgment on December 19, 2011, granting summary judgment in favor of Pociask. On May 14, 2012, pursuant to a rule to show cause issued by this court, the trial court signed an amended judgment, granting summary judgment in favor of Pociask and ordering that he shall be allowed to disavow paternity of the minor child, J.M. Moseley now appeals from this judgment.
JURISDICTION
Appellate courts have the duty to determine sua sponte whether their subject matter jurisdiction exists, even when the parties do not raise the issue. Gaten v. Tangipahoa Parish School System, 11-1133, p. 3 (La. App. 1st Cir. 3/23/12), 91 So. 3d 1073, 1074. Under Louisiana law, a final judgment is one that determines the merits of a controversy in whole or in part. La. C.C.P. art. 1841. A final judgment must be identified as such by appropriate language. La, C.C.P. art. 1918. A valid judgment must be precise, definite, and certain. Gaten, 11-1133 at p. 3, 91 So. 3d at 1074. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Gaten, 11-1133 at p. 3, 91 So. 3d at 1074.
This court, ex propria motu, issued a rule to show cause why the appeal should not be dismissed because the December 19, 2011, judgment did not identify the specific relief awarded in granting the summary judgment. After the trial court submitted an amended judgment dated May 14, 2012, granting summary judgment in favor of Pociask and ordering that he shall be allowed to disavow paternity of the minor child, J.M., this court issued an interim order, referring the rule to show cause to the panel assigned to hear the appeal. After reviewing the May 14, 2012 judgment, we find that it contains proper decretal language, granting summary judgment in favor of Pociask and specifying the relief to which he is entitled, namely the disavowal of the paternity of J.M. Further, because Moseley is the only defendant in the proceeding, failure to specify that the judgment is rendered against her does not render the judgment fatally defective. See Scott v. State of Louisiana, 525 So. 2d 689, 691 (La. App. 1st Cir. 1988), writ denied, 558 So. 2d 1128 (La. 1990). Accordingly, finding that the May 14, 2012 is a final appealable judgment, we recall the rule to show cause and maintain the appeal.
DISCUSSION
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La. App. 1st Cir. 12/30/02), 836 So. 2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2).
The defense of prescription may also be raised by motion for summary judgment, particularly where the disputed issue is one of law rather than material fact. Hogg v. Chevron USA. Inc., 09-2632, p. 6 (La. 7/6/10), 45 So. 3d 991, 997. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So. 2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So. 2d 1199; see also Doe v. Jones, 02-2581, p. 4 (La. App. 1st Cir. 9/26/03), 857 So. 2d 555, 557-558.
The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage. La. C.C. art. 185. The husband may disavow the paternity of the child by clear and convincing evidence that he is not the father pursuant to La. C.C. art. 187. However, an action to disavow paternity is subject to a liberative prescriptive period as set for in La. C.C. art. 189:
The action for disavowal of paternity is subject to a liberative prescription of one year. This prescription commences to run from the day the husband learns or should have learned of the birth of the child.
Nevertheless, if the husband lived separate and apart from the mother continuously during the three hundred days immediately preceding the birth of the child, this prescription does not commence to run until the husband is notified in writing that a party in interest has asserted that the husband is the father of the child.
In seeking summary judgment in her favor and in opposing Pociask's motion for summary judgment, Mosely urged that the second paragraph of La. C.C. art. 189 does not apply to the instant matter, and that Pociask's disavowal action is, therefore, untimely. Particularly. Moseley asserted that the parties stipulated during the October 18, 2010 hearing on Moseley's exception of prescription that Pociask returned to the matrimonial domicile the weekend of May 25, 2006, and that the parties stayed together at the residence on Peniston Street for at least one night. Moseley also asserted that the parties stipulated that Moseley journeyed to Pennsylvania with their son, E.P., in June 2006. Accordingly, due to these encounters, Moseley asserted that the parties lived separate and apart continuously for less than the required 300 days preceding the birth of J.M. Mosely attached a transcript from the October 18, 2010 hearing to her memorandum.
Historically, the presumption of the husband's paternity was labeled "the strongest presumption in the law." Guillory v. Guillory, 615 So. 2d 975, 977 (La. App. 1st Cir. 1993). In order to protect innocent children against attacks upon their paternity, the law prohibits disavowal of paternity except within extremely narrow limits and then only if done promptly after the birth of the child. Guillory, 615 So. 2d at 977. Because of the social and legal stigmas which attach to illegitimacy, our jurisprudence has established an unwavering dedication to the rule of strict construction of the articles governing disavowal actions. Guillory, 615 So. 2d at 977.
From our review of the record, the October 18, 2010 transcript clearly reveals that the parties stipulated to the visits in May and in June of 2006 as asserted by Moseley, and that these encounters occurred within the 300 days preceding the birth of J.M. Given the parties' stipulations on the record and the clear wording of La. C.C. art. 189, requiring that the parties live separate and apart continuously for 300 days preceding the birth of the child, we find that Pociask's claim does not fall within the exception to the general rule of prescription. This interpretation of the statute adheres to the strong pubic policy of this state to dispel doubts as to legitimacy, and it follows the rule of strict construction of the articles governing disavowal actions. See Gallo v. Gallo, 03-0794, pp. 7-8 (La. 12/3/03), 861 So. 2d 168, 173-174.
Accordingly, applying the general rule of prescription that the husband must file his disavowal action within one year of actual or constructive knowledge of the birth of the child, we find that Pociask's claim, filed seventeen months after the birth of J.M. and 14 months after he was aware of the birth of J.M., is clearly prescribed.
From our review of the record, the earliest evidence that Pociask was aware of the birth of J.M. is his admission in a June 11, 2007 Rule to Change Custody that Moseley has a "recently born child."
CONCLUSION
For the foregoing reasons, rule to show cause issued by this court ex proprio motu is recalled and the appeal is maintained. The judgment of the trial court, granting summary judgment in favor of Derek Pociask and allowing him to disavow the paternity of J.M., is reversed. Further, having found that Pociask's claim for disavowal of paternity is prescribed, we dismiss his action with prejudice. See La. C.C.P. art. 2164. All costs of this appeal are assessed to appellee, Derek Alan Pociask.
RULE TO SHOW CAUSE RECALLED AND APPEAL MAINTAINED; MAY 14, 2012 JUDGMENT REVERSED AND RENDERED.