My Big Fat Greek Divorce

A decision yesterday from the Delaware Supreme Court

This is an interlocutory appeal in a Family Court divorce proceeding. The petitioner in the Family Court is the wife, Gretchen Knowles (“the wife”). 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.

The story

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.

She filed for divorce in late May 2017.

On subject matter jurisdiction

The Family Court did not simply deny the husband’s motion to dismiss for lack of jurisdiction on this ground. It went further and determined that the wife had in fact met the statutory requirement. We do not understand this ruling because at 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 filed 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 longstanding marital home in Greece for over a month during this period. In fact, that period ended 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 suppose 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…

On service

The Family Court has not obtained jurisdiction over the husband because service of process was insufficient. The Family Court’s denial of his motion to dismiss on the grounds of insufficiency of service of process was error.

(Mike Frisch)