The case of the day is Daskin v. Knowles (Del. 2018). The wife was a dual citizen of the US and Greece. She and the husband, a Greek citizen, married in Delaware in 1990 and lived together in Greece until 2015. In 2015, the wife moved back to Delaware permanently due to marital problems. She filed a divorce petition in Delaware in 2017. The substantive issue raised by the husband was whether, in light of her back-and-forth travel, the wife had resided in Delaware for the requisite period of time before seeking divorce. If not, then the Delaware Family Court lacked jurisdiction. But the Letters Blogatory issue was whether service by mailing and publication, under a Delaware statute was sufficient.
The court correctly recognized that because Greece is a party to the Hague Service Convention and because it has objected to service by postal channels under Article 10(a) (and, implicitly, because the husband’s address was known), service under a Delaware statute requiring service by mail could not be sufficient. The wife argued that the husband had waived the defense by participating in the divorce case—he sought a stay of his deadline to answer the petition, sought leave to file a reply, moved to strike the wife’s request for “priority scheduling,” etc. But the judge held that none of this was sufficient to show waiver. Of course, there are steps one can take that do waive a service defense, e.g., answering a complaint without raising the defense; litigating the merits of the case for a sufficient time without trying to bring the issue to a head, etc. But that’s not what happened here.
The wife also claimed that she had served the husband personally in Greece. But that service failed to comply with the Convention and Delaware law. It failed to comply with the Convention because of Greece’s objections to service by alternate means. It failed to comply with Delaware law because Delaware law permits personal service in these circumstances only by a person authorized by the court, not a private process server.
The court therefore reversed the lower court’s denial of the husband’s motion to dismiss and remanded for further proceedings.