What Happens Outside of Vegas?

Can a child have more than one father? Yes, according to Louisiana law which allows for "dual paternity."

Louisiana's "family law" has undergone many changes in an attempt to react to the challenges presented by new medical technology and a breakdown of the traditional family structure. The recent Supreme Court decision in Derek Alan Pociask v. Kera Mosely is the latest effort to address these "modern problems."

The Pociask Court explained that there is a public interest in "protect[ing] innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child ... Thus, the traditional and historical position of Louisiana jurisprudence was to zealously guard and enforce the presumption of paternity created by the Civil Code." This public policy was easier to promote in the past when a husband may have had no reason to question or ability to challenge his paternity. However, in a world of vasectomies and DNA testing, the husband now has an increased ability to factually prove that he is not the father.

With "dual paternity," the first "father" is the husband of the child's mother. The second "father" is the biological father of the child. This situation can occur because the husband is presumed to be the father of the child under Louisiana law. See, La. C.C. art. 185. This "presumption" becomes incontrovertible if the husband does not bring an action to disavow his paternity within one year from when he learns or should have learned of the child's birth unless the husband lived separate and apart continuously from the mother for three-hundred days immediately preceding the birth of the child. See, La. C.C. art. 189.　

If the husband lived separate and apart for three-hundred days immediately preceding the birth of the child, the husband can bring a disavowal action within one year from being notified in writing that a party in interest asserts that he is the father of the child. If he fails to bring the disavowal action, he will be considered the "father" for all legal purposes. The purpose behind the "separate and apart" exception is to bring legal and biological paternity into "closer association." See, Katherine Shaw Spaht, Who's Your Momma, Who are Your Daddies?: Louisiana's New Law of Filiation, 67 La. L. Rev. 307 at 314 (2007).

In Pociask, the Louisiana Supreme Court addressed what it means to "live separate and apart continuously" from the mother. The plaintiff in Pociask (the presumed father and ex-husband of the defendant mother) brought an action to disavowal his paternity. The disavowal action was brought well over a year after the child's birth.

Factually, the presumed father in Pociask underwent a vasectomy prior to the birth of the child, had not entered into sexual relations with the mother for over three-hundred days (over nine months) prior to the child's birth and had barely seen the mother in the three-hundred days prior to the birth of the child. Moreover, DNA testing proved that he was not the biological father. Nevertheless, the Louisiana Court of Appeals determined that the husband was the presumed father of the child because he did not bring his disavowal action within a year of the child's birth.

The Court of Appeals interpreted the phrase "lived separate and apart continuously" so strictly that the husband's one night stay at the marital domicile during the three-hundred day period preempted the disavowal action. The Appeals Court held that the phrase "lived separate and apart continuously" should not be interpreted in pari materia (in a like manner) with the divorce articles of the Civil Code. In the divorce setting, a spouse will be found to have lived "separate and apart" when the overall circumstances show that there was no mutual intention to resume the marital relationship.

The Pociask Court disagreed with the strict reading of the "separate and apart" language used by the appellate court. According to the Pociask Court, the phrase "lived separate and apart continuously" should be interpreted the same way in a disavowal action as it interpreted with a divorce. Therefore, the overnight visit in Pociask did not serve to interrupt the three-hundred day period and the disavowal action was timely.

In a 68 page decision, the Louisiana Supreme Court in Hayes Fund for the First United Methodist Church of Welsh, LLC, et al. v. Kerr-McGee Rocky Mountain LLC, et al. forcefully explained the role of an appellate court. It is axiomatic that Louisiana appellate courts are courts of review. Louisiana law specifically sets the standard of review an appellate court must apply when reviewing a trial court’s factual decisions (manifest error) or its legal decisions (de novo). According to Hayes Fund, a failure to faithfully apply the “manifest error” standard of review where applicable causes an appellate court to function as a “choice-making court” when its proper role is to serve as an “errors-correcting court.”

The plaintiffs in Hayes Fund alleged that negligence by Kerr-McGee caused two wells to stop producing, leaving valuable assets out of reach. After a lengthy bench trial which spanned a ten-month period and involved over twenty-five days of live testimony, the trial court found that the plaintiffs failed to meet their burden to prove that the defendants caused the loss. Thereafter, the Third Circuit reversed the finding of the trial court as an abuse of discretion.

The Supreme Court reversed and reinstated the ruling in favor of defendants. The Court found that the primary issues in the trial court were factual issues concerning whether the experts were credible or factually correct, thus the “manifest error” standard of review should have been applied.

According to Hayes Fund, the manifest error standard of review is accomplished by undertaking a two-step process which asks: 1) whether there was any factual basis for the trial court’s conclusions; and, 2) whether the findings of the trial court were “clearly wrong.” Applying this test requires the appellate court to do more than “simply review the records for some evidence, which supports or controverts the Trial Court’s finding.” Instead, the appellate court must review the “entire record.” The Court cautioned that an appellate court is not to “re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently.”

Through its conclusion, the Hayes Fund Court provided clear guidance moving forward, stating:

Rarely should a District Court’s choice of expert(s) be found clearly wrong because it is so difficult to find a reasonable basis does not exist for the expert’s opinion relied upon by the District Court. It is destructive to the manifest error analysis for a reviewing Court to make its choice of the evidence rather than look for clear error in the reasonable basis found by the trier of fact. We have tortuously studied this scientific and voluminous record to demonstrate a proper manifest error review.

By its own terms, the Court intends the Hayes Fund decision in to provide “guidance” as to the “proper analysis for the reviewing Court(s).” While the principles discussed in Hayes Fund are not new or novel, the emphasis given by the Court was uniquely passionate and likely to quickly become a focus of future appellate argument and briefing.

Almost no litigation grabs attention and headlines more than a high-profile class action. The Louisiana Supreme Court's recent class action ruling was no exception in a case involving salacious conduct and a violation of privacy.

The plaintiff in Jane Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13) was an unnamed victim of a "peeping tom." She contended that an employee of a popular gym placed a pen camera in the women's bathroom where he would tape unsuspecting women in various states of undress. The pen camera could hold only 1-2 hours of film. The perpetrator testified that, after viewing, he would immediately delete the footage. The images of only four women were seen on the footage when it was discovered. After the employee was arrested, one of the victims filed the class action lawsuit. At issue before the Louisiana Supreme Court was whether the class action was properly certified by the Trial Court.

Class action is a nontraditional litigation procedure that was introduced into Louisiana civil procedure in 1961. Louisiana class action procedure is modeled after the original federal rule and has been extensively revised since its inception. Louisiana Code of Civil Procedure Article 591 provides the elements that must be met before a class action can be certified. Failure to meet one of the threshold requirements of Article 591 precludes class action treatment. Once of these threshold requirements is numerosity, i.e. a class of potential plaintiffs "so numerous that joinder of all members is impractical." La. C.C.P. art. 591(a)(1). The requirement of numerosity was at issue in Jane Doe.

In its analysis, the Supreme Court stressed that courts must perform a rigorous analysis to determine whether the proposed class action meets the requirements of Article 591. Simply pleading a class action is insufficient. Instead, the plaintiff "must be prepared to prove in fact" that the Article 591 requirements are met. Id. at p. 9. To establish the "numerosity" requirement, the class representative cannot simply allege that several persons were affected by the defendant's bad acts. She must be able to offer some proof of a definable group of aggrieved persons so numerous that joinder is impractical.

In Jane Doe, the Supreme Court held that the plaintiff did not satisfy numerosity. The employee's testimony revealed that he may have recorded approximately 20 women. However, because the footage was deleted, most of the potential class members could not show that their privacy had been violated. Only nine women had positive knowledge that they were on video. According to the Jane Doe Court, nine class members did not meet the numerosity requirement and the class was decertified. While the Court did not reveal a "magic number" to meet numerosity, we now know it may be higher than nine.

There is an old adage that "bad facts make bad law." In Jane Doe, the Louisiana Supreme Court did not let the egregious nature of the conduct impact its view that the requirements of Article 591 must be met in every circumstance.