Derrick Pociask and Kara Moseley were married that the time of Hurricane Katrina. Following the tragic storm, Pociask's employer left the city of New Orleans and offered him a position in Pittsburgh, Pennsylvania.  Prior to leaving, Pociask arranged for a contractor to perform repairs to his house with the expectation that the home would thereafter be sold and that Kara Moseley and her young son would eventually join him in Pennsylvania.  Unfortunately, Moseley had an affair with the contractor and the marriage quickly disintegrated after she became pregnant with the contractor's child.

After the birth, Pociask file a Petition to Disavow Paternity. Because the child was born while the divorce was pending, there was a presumption that Pociask was still the father of the child after the paternity test confirmed it wasn't. Eventually, Pociask filed a Motion for Summary Judgement asserting that he was not the biological father of the minor child. Moseley countered with her own Motion for Summary Judgement alleging that Pociask could not avail himself of the exception to the time limitations set forth in the Civil Code Article 189 which addressed disavowal actions.  She claimed that the parties did not live separate and apart continuously during the 300 days immediately preceding the birth of the minor child.  The Trial Court eventually granted Pociask's Motion for Summary Judgement. In a shocking move, the First Circuit Court of Appeal reversed the Trial Court's ruling finding that Pociask was presumed to be the father of the child because he spent one or two nights with his wife in the 300 days prior to the birth of the child.

The Supreme Court granted Writs and reversed the Court of Appeal's erroneous ruling finding that Pociask could avail himself on the 300 day time period exception to the running of prescription in the disavow action.  In this ruling, the Louisiana Supreme Court held that the Court of Appeal erred in not reading Louisiana Civil Code Article 189 in pari materia with La. Civil Code Articles 102 and 103 before determining whether the husband and mother had lived separate and apart continuously for the 300 days immediately preceding the birth of the child.  The District Court correctly found that one overnight visit, absent any allegation of cohabitation, sexual relations, or reconciliation, did not serve to interrupt the 300 day period.  Thus, the Supreme Court found that the District Court properly denied the defendant's Motion for Summary Judgement and granted Summary Judgement in favor of Pociask allowing him to disavow the paternity of the minor child.

Pociask v. Moseley, 2013-0232 (La. 6/28/13), 122 So.3d, 533 (2013).