Soldano v. Soldano , 411 N.Y.S.2d 395 ( 1978 )

Latham, J., dissents and votes to affirm the order, with the following memorandum:

Plaintiff’s cause of action must fail because she does not qualify as a "creditor” of the defendant husband as that term is used in the statute (Debtor and Creditor Law, § 273). At the time of the allegedly fraudulent conveyances, plaintiff and said defendant were married and living together. The mere relationship of husband and wife does not give rise to a debtor-creditor status (Eccles v Hutchinson, 28 Misc 2d 412). Even assuming that the defendant husband owed plaintiff a duty of support as a result of their marriage, it is not in the nature of a legal debt (see Romaine v Chauncey, 129 NY 566, 570; cf. Safie v Safie, 24 AD2d 502, affd 17 NY2d 601). Rather, the duty of support is in the nature of the performance of a general marital duty. During the marriage, this duty is too speculative to serve as the basis for lawsuits under the Debtor and Creditor Law (see Kafalian v Kafalian, 27 Misc 2d 1065). For example, in some marriages the equality of earning power between husband and wife renders nugatory any marital duty of support. In other marriages, the superior assets of the wife mandate that the duty of support run from wife to husband. It can be seen that this duty is amorphous and varies from marriage to marriage. However, once this duty is defined, either contractually, in a separation agreement, or judicially, in a matrimonial decree, it may become a "debt” if the supporting spouse fails to make the payments. In that situation, courts have held the wife to be a creditor, under the Debtor and Creditor Law, since her rights were predicated on a contractual or legal obligation (Bennett v Bennett, 62 AD2d 1154; Enthoven v Enthoven, 167 Misc 686, affd 256 App Div 813). In the case at bar, the allegedly fraudulent conveyances were made while the parties were living together as husband and wife. Neither was "indebted” to the other by virtue of this relationship. Therefore, plaintiff did not qualify as a "creditor” of the defendant husband and may not avail herself of the Debtor and Creditor Law.