Cortez Investment v. Yousif ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CORTEZ INVESTMENT COMPANY, LLC,
Plaintiff/Appellee,
v.
LATHE Y. YOUSIF,
Defendant/Appellant.
No. 1 CA-CV 20-0501
FILED 7-1-2021
Appeal from the Superior Court in Maricopa County
No. TJ2014-009859
The Honorable David W. Garbarino, Judge Pro Tempore
VACATED AND REMANDED
COUNSEL
The Hameroff Law Group, PC, Tucson
By David E. Hameroff, Kyra Padden Holtzman
Counsel for Plaintiff/Appellee
Jackson White, PC, Mesa
By John N. Skiba
Counsel for Defendant/Appellant
CORTEZ INVESTMENT v. YOUSIF
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Lathe Yousif and Juliet Yousif appeal a judgment against
garnishee on writ of garnishment entered against a bank account held in
both of their names. For the reasons herein, we vacate and remand for an
evidentiary hearing.
FACTS AND PROCEDURAL BACKGROUND
¶2 A judgment creditor obtained a default judgment in 2007
against “LATHE Y YOUSIF AKA OATHI YOUSIF, AND JOHN DOE” for
$7,322.69 and post-judgment interest of 10% per annum. About thirteen
years later, the judgment creditor’s assignee, Cortez Investment Company,
LLC, applied for a writ of garnishment in the superior court against a Desert
Financial Credit Union bank account (the “Account”) in the names of
“Lathe Y Yousif” and “Oathi Yousif aka Juliet Yousif.”
¶3 Lathe Yousif and Juliet Yousif appeared and objected to the
garnishment. The Yousifs told the court they were married and the
judgment did not include Juliet. They requested a hearing at which no
testimony was given. The only evidence received by the superior court was
a letter from the garnishee bank. The court overruled the Yousifs’ objection,
ordering that Cortez receive $15,719.85 from the Account in principal and
interest because “[t]he amount garnished is less than Ms. Yousif’s ½ interest
in the community property held in the account.” The Yousifs timely
appealed. We have jurisdiction. A.R.S. § 12-2101(A)(5)(c).
DISCUSSION
¶4 We review a garnishment judgment for an abuse of
discretion, Carey v. Soucy, 245 Ariz. 547, 552, ¶ 19 (App. 2018), and review
issues of statutory interpretation de novo, McGovern v. McGovern, 201 Ariz.
172, 175, ¶ 6 (App. 2001).
¶5 A judgment against one spouse does not bind the marital
community under Arizona law; instead, both spouses must be jointly sued
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CORTEZ INVESTMENT v. YOUSIF
Decision of the Court
to recover against community property. See A.R.S. § 25-215(D); Spudnuts,
Inc. v. Lane, 139 Ariz. 35, 36 (App. 1984).1
¶6 We vacate the superior court’s judgment against garnishee
because the record is devoid of supporting evidence, and the court might
have legally erred depending on the absent record evidence. Soucy, 245
Ariz. at 552, ¶ 19. On one hand, the court described the assets in the
Account as “community property,” and the judgment creditor only secured
a judgment against Lathe Yousif. Soucy, 245 Ariz. At 552, ¶ 19. On the other
hand, the record includes no evidence that Lathe Yousif and Juliet Yousif
are married. Accordingly, we remand the case for the court to conduct an
evidentiary hearing on whether Lathe and Juliet are married and, if so,
whether the Account predated the marriage. See A.R.S. § 25-215(B) (stating
that community property may be liable for premarital separate debts to the
extent of the value of the debtor spouse’s contribution to the community
property).
CONCLUSION
¶7 We vacate the superior court’s judgment against garnishee on
writ of garnishment and remand this matter for an evidentiary hearing.
Lathe and Juliet also seek their attorney fees on appeal under A.R.S. § 12-
341.01(A), which we deny because garnishment proceedings do not arise
out of contract. Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 207, ¶ 13
(App. 2014). As the prevailing party, however, Lathe and Juliet are
awarded their taxable costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 Cortez cites the Arizona Probate Code as contrary authority, A.R.S.
§ 14-6211(A), but this is not a probate case. Beyond that, the Probate Code
also provides that “[a] deposit of community property in an account does
not alter the community character of the property or community rights in
the property.” A.R.S. § 14-6216(a).
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