                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                 ______________________________________________

BRENDA KAYE THOMAS,

       Plaintiff-Appellee,
                                                                       FILED
                                                  Lake Chancery No. 3966
Vs.                                               C.A. No. 02A01-9711-CH-00292 1999
                                                                        April 6,

JOHNNY WAYNE THOMAS,                                                  Cecil Crowson, Jr.
                                                                       Appellate C ourt Clerk
      Defendant-Appellant.
____________________________________________________________________________

                  FROM THE LAKE COUNTY CHANCERY COURT
                  THE HONORABLE J. STEVEN STAFFORD, JUDGE




                              Ralph I. Lawson of Dyersburg
                                      For Appellant

                             Martin L. Howie of Dyersburg
                                     For Appellee




                             AFFIRMED AND REMANDED

                                      Opinion filed:




                                                         W. FRANK CRAWFORD,
                                                         PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE
     This appeal involves a petition to modify an award of alimony. Appellant, Johnny

Wayne Thomas (Husband), appeals the order of the trial court denying Husband’s petition to

modify by deletion an award of alimony in futuro awarded to Appellee, Brenda Kaye Thomas
(Wife).

          On October 19, 1994, an absolute divorce was granted to both parties. The divorce

decree ordered, inter alia, Husband to pay $236.00 per month to Wife as alimony in futuro.

This amount was the amount that her health insurance would cost through Husband’s place of

employment. Husband was also ordered to pay $150.00 per month as rehabilitative alimony for

a period of two years.

          On August 13, 1997, Husband filed a Petition to Strike Conditional Award of Alimony

in Futuro from Judgment of Divorce. In this petition, Husband submitted that the award of

alimony in futuro was based on Wife’s need to continue insurance coverage through Husband’s

employer because of her health condition. Husband asserts that the trial court implied that the

award was to be paid to cover the cost of insurance since the amount of the award was directly

related to the cost of the insurance and that the alimony would not be due if such insurance was

not in effect. Husband argues that the award should be stricken because of a change in

circumstances in that Wife does not have cancer and does not need nor uses the award to obtain

insurance. Wife’s response to the petition asserts that the court had previously ruled on this

exact issue, and the previous order is res judicata.

          On October 20, 1997, the trial court filed an order denying Husband’s petition. On

October 29, 1997, Wife filed a motion requesting attorney’s fees in the amount of $300.00 which

the trial court subsequently granted.

          Husband appeals and presents the following issues, as stated in his brief, for our review:

                 1) Whether the Trial Court erred in ruling that there was not a
                 preponderance of evidence to support a modification of the
                 alimony award due to a showing of a substantial and material
                 change in circumstances.

                 2) Whether the Trial Court erred in awarding attorney’s fees in
                 this cause.

          Since this case was tried by the trial court sitting without a jury, we review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.

T.R.A.P. 13(d).

          Husband submits that the award of alimony in futuro was based solely on the need of

Wife to secure health insurance through Husband’s employer because she was unable to secure


                                                  2
such elsewhere because of her health condition. He states that that need was erased when Wife

testified during a deposition that she did not have cancer, that such condition never existed, and

that she did not desire to continue to be covered by insurance through the Husband’s employer.

Therefore, Husband argues that there has been a substantial and material change in circumstances

warranting a modification of the alimony award.

        Wife admits that she did not have cancer and states that she never testified during the

divorce proceedings that she had cancer. She contends that the trial court’s statement in

reference to cancer was a “misprint.” However, she asserts that there is no implication that the

amount of the alimony award was based solely on the belief that she had cancer or that such

would not be due if no health insurance was in effect in the future. Wife states that the trial court

determined that she was in need of such support for numerous reasons and that alimony was not

awarded solely for her to obtain health insurance. Thus, modification of the award is not

warranted.

        T.C.A. § 36-5-101, which provides for spousal support, states, in pertinent part, that “the

court may decree an increase or decrease of such allowance only upon a showing of a substantial

and material change of circumstances.” T.C.A. § 36-5-101(a)(1) (1996 & Supp. 1998)

(emphasis added). The party seeking relief on the grounds of a substantial and material change

in circumstances has the burden of proving such changed circumstances warranting an increase

or decrease in the amount of the alimony obligation. Seal v. Seal, 802 S.W.2d 617, 620 (Tenn.

App. 1990). The change in circumstances must have occurred since the entry of the divorce

decree ordering the payment of alimony. Elliot v. Elliot, 825 S.W.2d 87, 90 (Tenn. App. 1991).

Furthermore, the change in circumstances relied upon must not have been foreseeable at the time

the decree was entered. Id.

        The decision to modify the alimony obligation is factually driven and requires a careful

balancing of several factors. Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. App. 1989). The

factors set forth in T.C.A. § 36-5-101(d), applicable to the initial grant of spousal support and

maintenance, where relevant, must be taken into consideration in determining whether there has

been a change in circumstances to warrant a modification of the alimony obligation. Threadgill

v. Threadgill, 740 S.W.2d 419, 422-23 (Tenn. App. 1987).

        While T.C.A. § 36-5-101(d) enumerates several factors for the court to consider, the need

of the spouse receiving the support is the single most important factor. Cranford, 772 S.W.2d


                                                 3
at 50. In addition to the need of the spouse receiving support, the courts most often take into

consideration the ability of the obligor spouse to provide support. Id.

        In its memorandum opinion, which is incorporated in the divorce decree, the trial court

stated with regard to alimony:

                        The wife certainly is deserving of alimony. There is a
                large disparity in earning power between the parties. Relative
                fault weighs against the husband. Virtually all the factors listed
                in T.C.A. § 36-5-101(d)(1) indicate that alimony is appropriate.
                However, the husband is being ordered to assume all the debts
                except for the wife’s automobile. His monthly payments on these
                debts will total approximately $1,400 per month. His net
                monthly income is approximately $2,500.
                        The wife has cancer and is unable to secure medical
                insurance except through the husband’s employment at a cost of
                $236.00 per month. Monthly alimony or alimony in futuro is set
                at $236.00 per month to be paid directly to the wife. The husband
                shall also pay directly to the wife $150.00 per month
                rehabilitative alimony for a period of two (2) years.

        After an evidentiary hearing, the trial court found that there was no proof that would

entitle Husband to a modification of the alimony award. The trial court made no ruling on the

plea of res judicata, although such a plea would be equally as applicable to a previous

proceeding to modify as it would be to the original divorce decree. In any event, from our

review of the record, we find that the evidence does not preponderate against the finding of the

trial court that there is no change of circumstances, either from the time of the original decree

or the previous proceeding to modify.

        It appears from the foregoing memorandum opinion that the trial court based its decision

to award alimony initially on several, if not all, of the criteria listed in T.C.A. § 36-5-101(d)(1).

While Wife’s physical condition may have been a factor in the trial court’s decision, this was not

the only factor. This is a marriage of significant duration, relative fault was assessed against

Husband, and there was a large disparity in earning capacity between the parties. Thus, Wife’s

current physical condition does not amount to a substantial and material change in circumstances

to warrant a modification of the alimony obligation.

        As for Husband’s second issue concerning attorney’s fees, Husband cites no authority

nor does he present any argument or discussion of the issue. Thus, this issue is deemed to be

waived. State ex rel. Dep’t of Transp. v. Harvey, 680 S.W.2d 792, 795 (Tenn. App. 1984); see

generally Tenn. R. App. P. 27(a)(7).

        Accordingly, the order of the trial court is affirmed, and the case is remanded to the trial

court for such further proceedings as may be necessary. Costs of the appeal are assessed to

                                                 4
appellant.

                                           _________________________________
                                           W. FRANK CRAWFORD,
                                           PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




                                       5
