Brenda Kaye Thomas v. Johnny Wayne Thomas ( 1999 )

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
3at 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