United States District Court, D. Arizona
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE.
the Court is Magistrate Judge Lynnette C. Kimmins' Report
and Recommendation (R&R), recommending that the District
Court grant Third-Party Petitioner Hebah Kaid Alghaithi's
Motion for Summary Judgment. The Government has filed an
objection. After reviewing the record, the Court will
overrule the Government's objection and adopt Judge
reviewing a Magistrate Judge's Report and Recommendation,
this Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
“[T]he district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis omitted). District courts are not required to
conduct “any review at all . . . of any issue that is
not the subject of an objection.” Thomas v.
Arn, 474 U.S. 140, 149 (1985). See also 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
relevant facts are undisputed, set forth in the R&R and
repeated in part herein.Petitioner Hebah Alghaithi and Defendant
Abdulkader Alghaithi were married in 2003. (Doc. 342-2; Doc.
343 ¶ 1; Doc. 349 ¶ 1.) At the time of marriage,
Defendant was living in the United States. (Doc. 343 ¶
2; Doc. 349 ¶ 2.) Petitioner, at the time, was living in
Yemen; she first entered the United States on December 13,
2016. (Doc. 348 ¶ 9; Doc. 348-2 ¶ 6 Attachment A.)
In January 2011, Defendant purchased a home at 3975 East
Agate Knoll Drive, Tucson, Arizona, titled in his name alone;
the debt to purchase the home was paid off in August of 2013.
(Doc. 344-1; Doc. 342-3; Doc. 343 ¶ 3; Doc. 348-1
Attachment A; Doc. 349 ¶ 3.) In July 2015, Defendant
purchased a 2015 Chevrolet Spark, titled in his name alone.
(Doc. 342-1 ¶ 4; Doc. 343, ¶¶ 6, 7; Doc. 349
¶¶ 6, 7; Doc. 348-1 Attachment B.)
2016, Defendant was indicted on criminal charges for a
conspiracy beginning no earlier than February 2011 (Docs. 3,
40, 53, 292), and, following his conviction, the Court
entered a Preliminary Order of Forfeiture for the home at
3975 East Agate Knoll Drive and the 2015 Chevrolet Spark,
which a jury found were both used to commit or facilitate
commission of Defendant's crimes. (Docs. 250, 258, 261.)
On January 29, 2019, Petitioner filed a third-party claim,
asserting a one-half community property interest in both the
home and the vehicle. (Doc. 279.) After discovery, Petitioner
moved for summary judgment on her claim. (Doc. 338.)
Government objects on the same grounds already presented to
and rejected by Magistrate Judge Kimmins. The Government
first argues that Petitioner failed to establish a community
property interest in the forfeited properties, because
Petitioner and Defendant “had no marital
domicile” or “marital community” (Doc. 352,
pg. 2), and because there is “no evidence of
record” establishing that the properties were purchased
with community funds. (Id. at pg. 4.) As stated in
the R&R, both properties were purchased with community
funds. In Arizona, there is a “presumption that
property acquired by either spouse during marriage is
community property.” Sommerfield v.
Sommerfield, 592 P.2d 771, 773 (Ariz. 1979); see
also A.R.S. § 25-211; A.R.S. § 25-201
(defining property to include income and earnings).
Petitioner and Defendant were married before Defendant
purchased either property. Each asserts that Defendant
purchased the property using community income (Docs. 342-1
¶¶ 3-4; 342-4 ¶¶ 3-4), and the Government
offers no evidence to the contrary. The Court thus concludes
that the properties were purchased with community funds.
Government again fails to provide support for its assertion
that because Defendant and Petitioner were separately
domiciled when the subject property was acquired, the
property is not community property. Notwithstanding the fact
that Defendant and Petitioner were living apart when
Defendant acquired the properties, the Court is unaware of
any authority that would rebut the community property
presumption so as to characterize the home and vehicle as
Defendant's separate property. Moreover, where spouses have
separate domiciles at the time of the acquisition, the local
law of the state where the spouse acquiring a movable
property was domiciled at the time ordinarily applies.
Restatement (Second) of Conflict of Law § 258, comment
(c) (1971). With respect to a house, the effect of the
marriage is determined by the law that would be applied by
the courts of the property's situs. Restatement (Second)
of Conflict of Law § 234 (1971). Given that at least one
spouse resided in Arizona at the time of purchase, and that
the marriage was valid in Arizona, the Court agrees with the
Magistrate Judge's determination that Arizona has a
strong interest in the rights to the property.
Government's final objection is that the forfeited
properties were not communal because both were titled in only
Defendant's name. (Doc 352, pg. 5.) Property does not
need to be titled in each spouse's name, however, to be
considered community property. E.g.,
Sommerfield, 592 P.2d at 773 (the presumption that
property acquired by either spouse during the marriage is
community property applies irrespective of which spouse holds
IT IS ORDERED that:
Report and Recommendation (Doc. 351) is ADOPTED;
Petitioner's Motion for Summary Judgment ...