IN THE SUPREME COURT OF THE STATE OF DELAWARE

GENE M. DASKIN , Respondent Below, Appellant,

v. GRETCHEN KNOWLES , Petitioner Below, Appellee. § § § § § § § § § § § No. 513, 2017
Court Below: Family Court of the State of Delaware
File No.: CN17

- 03287 Petition No.: 17

- 16093

Submitted: June 13, 2018 Decided: August 20 , 2018

Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.
Upon appeal from the Family Court

. VACATED IN PART , REVERSE D IN PART AND REMANDED

.

Gretchen S. Knight. Esquire, a nd Jill Spevack Di Sciullo, Esquire , Morris James LLP, Wilmington, Delaware, and Leslie B. Spoltore, Esquire , Obermayer, Maxwell, Rebma nn & Hippel, LLP, Wilmington, Delaware, for Appellant.
Patrick J. Boyer, Esquire , and Marie I. Cro ssley, Esquire , MacElr ee Harvey, Ltd., Centreville, Delaware, for Appellee

.2

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 petit ion 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. Sh e was born in Wilmington and resided with her mother at her mother’s Wilmington home prior to
the part ies’ marriage . The y marr ied in Wilmington in 1990 , and from then until
November 2015 , resided together in Greece.
T hroughout the marriage, the w ife traveled frequently between the United
States and Greece. In November 2015, s he traveled to Delaware for what she states

1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).3

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 a nother 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 De laware. 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 ret urned 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 th e time the wife has spent in Delaware since
2015 is t emporary 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 pay s 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 of4

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 who m attended American universities. The wife owns several properties in Greece. The husband’s position is that she is a re sident of Greece, not Delaware.
The wif e filed her petition for divorce on May 30, 2017. S ervice of process upon the husband wa s 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 h usband 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 has5

been properly served under 13 Del. C. § 1508(b)

. She also argued tha t she had attempted and was continuing to attempt to serve the husband personally at his Greek
residence in accordance with Greek law, but he wa s refusing to answer the door. As to that effort, the record shows that initially a Greek process serv e r went t o 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 th at 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 w ife 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

- deli vering a copy of the Petition for Divorce to opposing counsel, b) providing Husband a copy of the Petition for Divor ce via email and certified mail or c) authorizing service through O’Ro u rke Investigative Services and/or Crowe Foreign6

Services.” 2 On August 8, 2017, a Family Court Commissioner denied the h usband’s
motion to dismiss . He also ruled that the w ife’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
h usband the n filed a motion appealing the C ommissioner’s decision to a J udge and requesting a stay of the order that he file an answer within twenty days

. Shortly thereafter, he filed a “ M otion to A me nd and S upplement al Motion to Stay Commissioner’s Order Regarding Filing of Answer to Petition for Divorce. ” The wife filed a response opposing th ose motion s
. In the meantime, the wife filed a m otion 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 enjoin ing him from filing any future divorce petitions in any jurisdiction othe r than Delaware. The wife also filed a “Motion for Priority Scheduling and Amended Motion for Interim Relief.” In his m otion to a mend , mentioned above, the husband opposed the wife’s motion for interim relief. The

2 App. to Appellant’s Opening Br. at A

- 70.7

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, t he Family Court J udge den ied 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 C ommissioner’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, t wo days later a final divorce decree
was issued and jurisdiction was retain ed 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 inte rlocutory appeal, and this C ourt accepted it. STANDARD OF REVIEW
This Court ’ s rev iew of appeals from the Family Court extends to review of the8

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 are the product of an orderly and logical deductive process.” 4
DISCUS S ION We begin by discussing two issue s raised by the wife. She claims that we do not have jurisdiction over this interlocutory appeal because the Family Court’s November 1, 2017 order and the divorce decree are final, not interlocutory, orders. She relies upon 13 Del. C. § 1518, which provide s that “ [ a ] decree granting or denying a petition for divorce or annulment is final when entered, s ubject to the right of appeal ” and our Rule 42 5 governing interlocutory appeals. Since the divorce decree is a final order, the argument goes, there is no j urisdiction to hear an appeal
under Rule 42 because that rule is lim ited to interlocutory appeals. This argument was not made in the Family Court during the procedure for certification of an interlocutory appeal. It is made for the f irst time here in this
C ourt. While it is true that a divorce decree is final when entered, jurisdiction was
retained in this case for deciding ancillary matters. A final Family Court judgment

3 Gordon v. Collins , 2004 WL 3220295, at *2 (Del. 2004) (citations omitted). 4 Stewart v. Stewart , 41 A.3d 401, 403

– 04 (Del. 2012). 5 Supr. Cr. R. 42.9

for appeal purposes would come into existence only after the Family Court ruled
upo n the ancillary matters. Since the Family Court has not ruled upon the ancillary matters over which it retained jurisdiction, this is an interlocutory appeal. The wife’s claim that we lack jurisdiction to hear this appeal is rejected. She also argues tha t the appeal should be dismissed because the husband is in contempt of the Family Court’s November 1, 2017 order by having prosecuted, and continuing to prosecute , his petition for divorce in Greece. She relies upon Schmidt
v. Sch m idt

. 6 That case also involved an appeal from Family Court. The husband was the appell ant. In the proceedings in Family Court, the judge found the husband in contempt for failure to comply with a Family Court order. When he filed his appeal, he was the subje ct of an outstanding capias for his arrest issued by the Family Court when it found him in contempt. In dismissing the appeal, this C ourt commented that “Husband has failed to comply with an order of the Family Court which has not been stayed pending appe al.” 7 This C ourt also commented that the husband was “in defiance of a court order and a fugitive from justice.” 8 In this case there has been no finding that the husband is in contempt of a Family Court order, and the Family Court order at issue (the Nove mber 1, 2017

6 610 A.2d 1374 (Del. 1992). 7 Id. at 1376. 8 Id.10

order) was stayed by the Family Court when it certified the appeal. These factors distinguish Schmidt v. Schmidt . The wife’s argument that the appeal should be dismissed because of alleged contempt by the husband is rejected.
We now move to the husband’s contentions. T he Family Court has jurisdiction over divorce actions “where either petitioner or respondent , at the time the action was commenced, actually resided in [Delaware] . . . continuously for 6 or more months immediately preceding th e commencement of the action.” 9 “T his
Court [has] rejected a ‘laundry list’ approach to determining domicile and reaffirmed the use of a ‘deep roots’ analysis.” 10 To establish domicile in Delaware a party
needs to: actually abandon his previous residence with no intention of returning, coupled with the further intent of making Delaware a permanent home.

. . . [ N ] o one factor is dispositive. . . . Instead, ‘the totality of circumstances [must] clearly [show] an integration in to the chosen locale of residency, making it advantageous to remain and d isadvantageous to leave. . . .’ 11 The Family Court did not simply deny the husband’s motion t o dismiss for lack of jurisdiction on this ground. It went further and determined that t he wife had in fact met the statutory requirement. We do not understand this ruling because at

9 13 Del. C. § 1504. 10 Bruce E.M. v. Dorothea A.M. , 455 A.2d 866, 869 (Del. 1983) (citing to Wife (J.F.V.) v. Husband (O.W.V., Jr.) , 402 A.2d 1202, 1203 (Del. 1979)). 11 Bruce E.M. , 455 A.2d at 869 (quoting Wife (J.F. V. ), 402 A.2d at 1204).11

best the record below on the point was contested. In fact, the wife admits that she spent more days outside of Delaware in the six

- month period before she file d for divorce that she did within Delaware, that a majority of those days were spent in Greece, and that she shared the same bedroom with her husband in their long

standing marital home in Greece for over a month during this period. In fact, that period e nded on the very date the wife says that the parties separated. Given this record, the husband makes a colorable argument that his motion to dismiss should have been granted. After all, the plain language of 13 Del. C. § 1504 requires that
the wife have lived in Delaware continuously for 6 months before filing for divorce, and someone who lived more than half of that period outside Delaware would not seem to qualify. Even if we do not give the traditional weight to the statute’s plain language and suppos e that the wife may have created enough of a basis to avoid a motion to dismiss if one focuses solely on her alleged side of the story, it is plain to us that a material issue of fact existed and that there was no basis for the Family
Court to resolve this issue conclusively without an evidentiary hearing. We therefore vacate this ruling and require that any consideration of the issue of subject matter jurisdiction be revisited on a fresh basis, to the extent that the wife serves the husband properly and e stablishes a basis for personal jurisdiction over him. We next address the husband’s contention that service of process was12

insufficient because it was not performed in accordance with the Hague Service
Convention. The Convention on Service Abroad of Judi cial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention) seeks to “simplify, standardize, and generally improve the process of serving documents abroad, [by] specifying certain approved methods of service.” 12 Each member state to the Convention is required to set up a “central authority” to receive requests for service of documents from other member states, but a member state may consent to
other means of service within its borders. 13 The Uni ted States Supreme Court has described the operation of the Convention as follows: Once a central authority receives a request in the proper form, it must serve the documents by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatib le with that law. Art. 5. The central authority must then provide a certificate of service that conforms to a specified model. Art. 6. A state also may consent to methods of service within its boundaries other than a request to its ce ntral authority. Arts. 8

- 11, 19. 14
Both the United States and Greece have ratified or acceded to the Convention. Under the Supremacy Clause contained in the United States Constitution, Article VI, the Convention “pre

- empts inconsistent methods of service prescribed by state law

12 Water Splash, Inc. v. Menon , 137 S.Ct. 1504, 1505 (2017). 13 Wright v. American Home Products Corp. , 768 A.2d 518, 523 (Del. Super. April 20, 2000). 14 Volkswagenwerk Aktiengesellschaft v. Schlunk , 486 U.S. 694, 699 (1988).13

in all cases to which it applies.” 15
The Convention applies if the internal law of th e forum state “defines the applicable method of serving process as requiring the transmittal of documents abroad.” 16 The Convention applies here because any valid method of service requires the transmittal of the summons and a copy of the petition for divo rce to the
husband in Greece.
Under Article 10 of the Convention , service of process by mail or by personal
service in the destination State is permitted so long as the receiving State does not object. 17 The pertinent language reads as follows:
Provided the State of destination does not object, the present Convention shall not interfere with

– a) the freedom to send judicial documents , by postal channels, directly to persons abroad 18

c ) the freedom of any person interested in a judicial proc eeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
In Water Splash, Inc. v. Menon , the United States Supreme Court recognized that “in cases governed by the Hague Service Convention, service by mail is

15 Id. 16 Id. at 700. 17 Water Splash , 137 S.Ct. at 1513; Hague Service Convention, Article 10. 18 Hague Service Convention, Article 10 (a).14

permissible if two conditions are met: first, the receiving state has not o bjected to service by mail; and second, service by mail is authorized under otherwise

applicable law.” 19 Both conditions must be satisfied.
Greece is a State which objects to service of process via mail under Article
10. 20 The husband’s argument is simple and straightforward. Since Greece is a State which objects to service of process via mail, service under 13 Del. C. § 1508(b) by mailing and publication is in valid

. The wife responds by arguing that the husband has waived his defense of insufficiency of service of process. He did so, she argues, by becoming an actor in
the case o n the substance of the divorce and ancillary mat ters. The acts taken by him, she continues, include seeking a stay of the Family Court’s order requiring him to file an answer to the wife’s petition for divorce; filing a m otion to a mend his motion for a stay ; contesting , in the m otion to a mend , the wife ’s claims in her motion for interim relief; filing his motion for leave to file a reply to the wife’s response to his appeal from the Commissioner to a Judge; and filing a motion to strike the wife’s motion for priority scheduling.

19 Water Splash , 137 S.Ct. at 1513. 20 See Greece

– Central Authority & Practical Information , Ha g u e Conference on Private International Law, https://www.hcch.net/en/states/authorities/details3/?aid=258, (last visited July 11 , 2018).15

While a respondent may waive the defense of insufficiency of service of process, we do not think the husband has done so here. “Waiver is the voluntary and intentional relinquishment of a known right.” 21 The husband’s assertion of the
defenses of lack of subject matter jurisdiction and insufficiency of process were ongoing. All of the actions he took were defensive. A respondent does not waive the defense of lack of insufficiency of process by attempting to protect himself against offensive activities on the part of a petitioner. The wife also argues that service by mailing and publication under 13 Del. C. §1508(b) and (d) was valid and effective service. 22 This argument must fail because Greece’s objection to such service renders service by mail incon sistent with the Hague Service Convention in the case of people living in Greece.
The wife also claims to have accomplished personal service over the husband by the above

- described efforts to serve him at his residence in Greece

. However, the attempt to serve him personally does not comply with any of the procedures for
service authorized by a Delaware statute or the Civil Rules of the Family Court. Family Court Civil Rule 4(a) authorizes service by the sheriff or by “a person

21 Realty Growth Investors v. Council of Unit Owners , 453 A.2d 450, 456 (Del. 1982). 22 13 Del. C. § 1508(d) describes the manner in which mailing and publication are to be accomplished when a party is being so served under 13 Del. C. §1508(b).16

specially appointed by t he Court to serve it.” 23 Rule 4(c) provides that service shall be made by the sheriff or by “some person specially appointed by the Court for that purpose.” 24 The Family Court did not approve the appointment of a special process server in Greece. In fact, the Family Court denied the wife’s m otion to a pprove a

s pecial p rocess s erver as moot. For this reason alone, service by a Greek p rocess server is insufficient. In addition, however, Greece has objected on behalf of its citizens to the provision in The Hague Service Convention which allows a party to be served personally in Greece as the destination State, rendering such service unavailable
under the Convention

. 25 For these reasons, the Family Court has not obtained jurisdiction over the
husband because service of process was insufficient. 26 The Family Court’s denial of his motion to dismiss on the grounds of insufficiency of service of process was

23 Fam. Ct. Civ. R. 4(a). 24 Id. at 4(c). 25 Hague Service Convention, Article 10(c). See supra note 22 (demonstrating Greece’s objection to Article 10(c)). 26 Even if the wife makes valid service of process on the husband and succeeds in showing that she was a Delaware resident when the petition was filed, she must still overcome the obstacle of establishing that Delaware has in personam jurisdiction over the hu sband before she can seek property division or any type of financial relief. Cottone v. Cottone, 547 A.2d 625 (Del. Fam. Ct. 1988). As important, we note there are serious issues of choice of law and comity that would have to be overcome if the wife advo cates for the application of Delaware law to a marriage that was, by both parties’ account, centered in Greece for its entirety

.17

error. CONCLUSION
We vacate the judgment of the Family Court denying the husband’s motion to dismiss for lack of subject matter jurisdiction. W e reverse the judgment of the Family Court denying the husband’s motion to dismiss for lack of personal jurisdiction due to insufficiency o f service of process. This matter is remanded to the Family Court to vacate the divorce decree , the J udge’s order of November 1,
2017 and the C ommissioner’s order of August 8, 20 17 , and for such further proceedings as may be consistent with this o pinion. Jurisdiction is not retained.