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Daskin v. Knowles

Supreme Court of Delaware

August 20, 2018

GENE M. DASKIN, Respondent Below, Appellant,
v.
GRETCHEN KNOWLES, Petitioner Below, Appellee.

          Submitted: June 13, 2018

          Court Below: Family Court of the State of Delaware File No.: CN17-03287 Petition No.: 17-16093

         Upon appeal from the Family Court. VACATED IN PART, REVERSED IN PART AND REMANDED.

          Gretchen S. Knight. Esquire, and Jill Spevack Di Sciullo, Esquire, Morris James LLP, Wilmington, Delaware, and Leslie B. Spoltore, Esquire, Obermayer, Maxwell, Rebmann & Hippel, LLP, Wilmington, Delaware, for Appellant.

          Patrick J. Boyer, Esquire, and Marie I. Crossley, Esquire, MacElree Harvey, Ltd., Centreville, Delaware, for Appellee.

          Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.

          VAUGHN, Justice

         This is an interlocutory appeal in a Family Court divorce proceeding. The petitioner in the Family Court is the wife, Gretchen Knowles ("the wife").[1] The respondent/husband, Gene Daskin ("the husband"), is a Greek citizen residing in Greece. The appeal comes from the husband. He raises two claims: (1) the Family Court erred in finding it had subject matter jurisdiction over the wife's divorce petition because she was not a Delaware resident for six consecutive months prior to the filing of the petition; and (2) the Family Court erred in finding that service of process upon him was sufficient without requiring that service be properly made under the Hague Service Convention.

         FACTS AND PROCEDURAL HISTORY

         The wife is a dual citizen of the United States and Greece. She was born in Wilmington and resided with her mother at her mother's Wilmington home prior to the parties' marriage. They married in Wilmington in 1990, and from then until November 2015, resided together in Greece.

         Throughout the marriage, the wife traveled frequently between the United States and Greece. In November 2015, she traveled to Delaware for what she states in an affidavit was a permanent move back to this state because of marital difficulties between she and her husband. She moved into her mother's house and still resides there. Her mother is now deceased. She states that her mother's house is to be sold and she has bought another house in Wilmington to live in once her mother's house is sold. She states that she returned to Greece from December 2016 to January 2017 to celebrate the Christmas holiday with her children and friends. She then returned to Delaware. On March 19, 2017 she returned to Greece to attend the funeral of her husband's mother. She explains that in the Greek Orthodox Church, the mourning process includes the funeral and then a memorial service held 40 days after the funeral. She returned to Delaware May 16, 2017. She has health insurance in Delaware and a vehicle which is registered in Delaware. She is a Delaware taxpayer, maintains a Delaware driver's license, and is registered to vote in Delaware.

         The husband contends that the time the wife has spent in Delaware since 2015 is temporary and for limited purposes. He contends she was not a resident of Delaware for the six months preceding the filing of her divorce petition. In his affidavit, the husband states that the wife pays taxes in Greece, has a Greek social security number, has a Greek identity card and has accounts in Greek banks. He also states that the wife continues to maintain a private marketing business out of their home in Greece. He states her trip to the United States on May 16, 2017 was to see their son graduate from an American University. He also states that the wife's presence in Delaware was for the temporary purpose of caring for her mother and visiting their sons, both of whom attended American universities. The wife owns several properties in Greece. The husband's position is that she is a resident of Greece, not Delaware.

         The wife filed her petition for divorce on May 30, 2017. Service of process upon the husband was made by mailing and publication in accordance with 13 Del. C. § 1508(b). Specifically, the summons and a copy of the petition were mailed to the husband care of his place of business in Greece. Publication occurred in the Wilmington News Journal.

         The husband moved to dismiss the divorce petition on June 20, 2017, arguing that the Family Court lacks jurisdiction because the wife was not a resident of Delaware for six months preceding the filing of the petition and that service upon him was insufficient because it was not made in accordance with the requirements of The Hague Service Convention.

         The wife filed a response in opposition to the motion, claiming that Delaware has subject matter jurisdiction over her divorce because she has been a Delaware domiciliary since November 3, 2015. In addition, she argued that the husband has been properly served under 13 Del. C. § 1508(b). She also argued that she had attempted and was continuing to attempt to serve the husband personally at his Greek residence in accordance with Greek law, but he was refusing to answer the door. As to that effort, the record shows that initially a Greek process server went to the wrong address in Greece and, not finding anyone there, posted the service documents on the door. This was followed by mailing a copy of the documents to the same wrong address. It was subsequently discovered that the address was wrong because of a translation error. The process server then went to the correct address, and, apparently again not finding anyone there, posted the documents to the door, followed by mailing to that address. The husband disputes that service in this manner was ever made upon him.

         When she responded to the husband's motion to dismiss, the wife also filed a "Motion to Approve a Special Process Server and Approve Alternate Means of Service." In that motion, she asked the court to approve service "through either a) hand-delivering a copy of the Petition for Divorce to opposing counsel, b) providing Husband a copy of the Petition for Divorce via email and certified mail or c) authorizing service through O'Rourke Investigative Services and/or Crowe Foreign Services."[2]

         On August 8, 2017, a Family Court Commissioner denied the husband's motion to dismiss. He also ruled that the wife's motion for alternate service or a special process server was moot because the husband had been properly served. The Commissioner ordered the husband to file an answer within twenty days. The husband then filed a motion appealing the Commissioner's decision to a Judge and requesting a stay of the order that he file an answer within twenty days. Shortly thereafter, he filed a "Motion to Amend and Supplemental Motion to Stay Commissioner's Order Regarding Filing of Answer to Petition for Divorce." The wife filed a response opposing those motions.

         In the meantime, the wife filed a motion for interim relief. In that motion she requested alimony, attorney's fees, and other interim relief. The other relief requested included an order requiring the husband to dismiss a petition for divorce he filed in Greece and enjoining him from filing any future divorce petitions in any jurisdiction other than Delaware. The wife also filed a "Motion for Priority Scheduling and Amended Motion for Interim Relief." In his motion to amend, mentioned above, the husband opposed the wife's motion for interim relief. The husband also filed a "Motion for Leave of Court to File a Reply to Response to Respondent's Request for Review of Commissioner's Order and a Motion to Strike Motion for Priority Scheduling and Amended Motion for Interim Relief."

         In an order dated November 1, 2017, the Family Court Judge denied the husband's appeal. He found that the wife's affidavit established that she is a Delaware resident who actually resided in Delaware for six or more months before the filing of her petition and that the husband had been duly served under 13 Del. C. § 1508(d). He denied the husband's motion for a stay and ordered that the wife could proceed with her divorce since no answer had been filed to the divorce petition within twenty days of the Commissioner's order. He further ordered the husband to file a response to the wife's motion for interim relief by November 20, 2017. Finally, he enjoined the husband from seeking a divorce in Greece.

         According to the Family Court docket, two days later a final divorce decree was issued and jurisdiction was retained for ancillary matters.

         The husband applied for certification of an interlocutory appeal of the Family Court's November 1, 2017 order. The Family Court certified the interlocutory appeal, and this Court accepted it.

         STANDARD OF REVIEW

         This Court's review of appeals from the Family Court extends to review of the facts and the law. If the Family Court has applied the law correctly, the standard of review is abuse of discretion."[3] "We will not disturb inferences and deductions that are supported by the record and that ...


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