                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                January 31, 2012 Session

                      CAROL CRISEL V. THOMAS CRISEL

                 Appeal from the Circuit Court for Jefferson County
                   No. 22,530-IV Hon. O. Duane Slone, Judge




            No. E2010-02042-COA-R3-CV-FILED-FEBRUARY 22, 2012




This appeal involves the “spousal impoverishment” provision of the Medicare Catastrophic
Coverage Act of 1988 (“MCCA”). Thomas Crisel (“Husband”) was placed in a nursing
home for health-related problems. Subsequently, Carol Crisel (“Wife”) filed a complaint
against Husband in which she sought spousal support in the form of a transfer of the family
residence and all of his income. The trial court granted Wife’s request and filed an order
reflecting its decision. Upon receiving notice of the order, the Tennessee Department of
Human Services (“TDHS”) filed a motion to intervene and to set aside the order pursuant to
Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied the motion.
TDHS appeals. We reverse the judgment of the trial court and remand with instruction to
the trial court to reconsider Wife’s complaint for spousal support with TDHS participating
as an intervening party.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter, and Sue A. Sheldon, Senior Counsel,
Health Care Division, Nashville, Tennessee, for the appellant, Tennessee Department of
Human Services.

Alexander M. Taylor, Knoxville, Tennessee, for the appellee, Carol Crisel.

C. Douglas Berryhill, Jefferson City, Tennessee, guardian ad litem for the institutionalized
spouse, Thomas Crisel.
                                          OPINION

                                     I. BACKGROUND

        Husband was placed in a nursing home after he was diagnosed with Alzheimer’s
disease and other medical problems necessitating specialized care. While Husband was
institutionalized, he still received approximately $3,802.61 in monthly income. Wife filed
a complaint for spousal support, asserting that she did not have a monthly income and that
her monthly expenses exceeded $5,000. She acknowledged that Husband was eligible for
Medicaid and that she would be entitled to a portion of Husband’s income pursuant to the
minimum monthly maintenance needs allowance (“MMMNA”) provided for in the MCCA.
She believed that her allotted MMMNA would not cover her monthly expenses and asked
the court to award her the family residence and all of Husband’s income. She opined that the
court had the authority to award her more than she was eligible to receive under the
MMMNA without affecting Husband’s eligibility for Medicaid.

      The court appointed a guardian ad litem for Husband but did not notify TDHS of the
impending hearing. The court entered an order on June 28, 2010, finding that

       Wife’s reasonable and necessary monthly expenses exceed the State’s
       [MMMNA] of $1,821. Under the authority of the Federal law, the [c]ourt
       finds that [Wife] is a spouse in need of support from [Husband], and those
       needs can only be [met] by entering an order of support and property for
       [Wife] against [Husband]. [Wife] has therefore established to the satisfaction
       of the [c]ourt that she is entitled to a deviation from the [starting] point of the
       qualification of income set forth in the [MCCA].

The court further stated, “Upon approval of [Husband’s] application for Medicaid, under the
authority of state and federal law[, the] community spouse monthly income allowance shall
be set at 100 [percent] of [Husband’s] monthly income.”

        Upon its receipt of the order allocating all of Husband’s income to Wife, TDHS filed
a motion to intervene and to set aside the order. This consolidated motion was filed on July
29, 2010, approximately 31 days after the order was entered. TDHS asserted that it was
entitled to intervene as of right because its interest in the hearing was not adequately
protected. TDHS opined that it was responsible for determining income and resource
eligibility for Medicaid benefits and that the transfer of Husband’s income impoverished him,
making him a ward of the state and affecting public funds. TDHS contended that the court
failed to use the proper eligibility standards as required by the MCCA, impacting the fiscal
strength of the MCCA. TDHS related that Husband’s application for Medicaid revealed

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unreported sources of income that should have been considered before determining that Wife
was entitled to a deviation from the MMMNA.

       Wife responded by asserting that TDHS was not entitled to notice of the hearing or
to be made a party to the proceeding. She related that Rule 60.02 relief from the order was
unwarranted given the facts of the case. The court did not specifically rule on the motion to
intervene but denied the entirety of the consolidated motion, finding “that the motion [did]
not meet the requirements of Tenn. R. Civ. P. 60.02.” This timely appeal followed.

                                         II. ISSUES

       We consolidate and restate the issues raised by TDHS on appeal as follows:

       A. Whether the trial court erred in denying the motion to intervene.

       B. Whether the trial court erred in denying the Rule 60.02 motion.

                             III. STANDARD OF REVIEW

        “The standard of review on appeal for the denial of intervention as of right is de
novo.” State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000)
(citing Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997)). However,
this court reviews the timeliness of an application for intervention under an abuse of
discretion standard. Id. Likewise, a ruling on a Rule 60.02 motion to set aside may not be
reversed on appeal unless the trial court abused its discretion. Federated Ins. Co. v. Lethcoe,
18 S.W.3d 621, 624 (Tenn. 2000). “A trial court abuses its discretion only when it ‘applie[s]
an incorrect legal standard or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). If a discretionary
decision is within a range of acceptable alternatives, we will not substitute our judgment for
that of the trial court simply because we may have chosen a different alternative. White v.
Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999).

                                     IV. DISCUSSION

       “Title XIX of the Social Security Act, enacted in 1965, authorizes Federal grants to
States for medical assistance to low-income persons who are . . . disabled [].” 42 C.F.R. §
430.0. “The program is jointly financed by the Federal and State governments and
administered by States.” 42 C.F.R. § 430.0. In Tennessee, TDHS is tasked with utilizing
“broad Federal rules” in determining “eligible groups, types and range of services, payment

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levels for services, and administrative and operating procedures.” 42 C.F.R. § 430.0; see
also 42 C.F.R. § 431.10; Tenn. Code Ann. § 71-5-104. TDHS must ensure compliance with
the broad federal rules or risk the loss of federal funding. 42 U.S.C. § 1396c; 42 C.F.R. §
430.35. Applicants may receive assistance if their income and resources are within a certain
range. The spousal impoverishment provisions of the MCCA were enacted in 1988 to ensure
that maintaining an institutionalized spouse’s eligibility for medical assistance did not
impoverish the community spouse. 42 U.S.C. § 1396r-5; see Blumberg v. Tennessee Dep’t.
of Human Servs., No. M2000-00237-COA-R3-CV, 2000 WL 1586454, at *2 (Tenn. Ct. App.
Oct. 25, 2000). If a spouse believed that the MMMNA was inadequate for his or her needs,
the spouse could seek an increase of the amount through an administrative Medicaid fair
hearing or through a court order. Blumberg, 2000 WL 1586454, at *2-3. If a spouse elected
to pursue an increase through the court system, then the court was tasked with applying “the
standards utilized to determine [M]edicaid eligibility in this state.” Tenn. Code Ann. § 71-5-
121.

                                              A.

        TDHS asserts that the trial court erred in implicitly denying the motion to intervene
because it had a “duty under federal and state law to ensure that Medicaid eligibility
requirements [were] applied correctly to institutionalized persons and their community
spouses.” TDHS relates that “it will be required to follow the order of allocation made by
the trial court in assessing [Husband’s] eligibility for Medicaid-funded nursing home care
and the patient liability amount for which [Husband] will be responsible.” Wife responds
that denial of the motion to intervene was warranted because the motion was untimely. She
asserts that allowing TDHS to intervene would unnecessarily force her to participate in a
second trial.

        The parties are in agreement that by not specifically ruling on the motion to intervene,
the trial court implicitly denied the motion. See Carson v. Challenger Corp., No. W2006-
00558-COA-R3-CV, 2007 WL 177575, at *4 (Tenn. Ct. App. Jan. 25, 2007) (providing that
a person never becomes a party to an action if the trial court does not grant a motion allowing
the person to become a party). Accordingly, we must determine whether the trial court erred
in implicitly denying the motion to intervene. Intervention as of right is governed by Rule
24.01 of the Tennessee Rules of Civil Procedure, which provides,

       Upon timely application anyone shall be permitted to intervene in an action:
       (1) When a statute confers an unconditional right to intervene; or (2) when the
       applicant claims an interest relating to the property or transaction which is the
       subject of the action and the applicant is so situated that the disposition of the
       action may as a practical matter impair or impede the applicant’s ability to

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       protect that interest, unless the applicant’s interest is adequately represented
       by existing parties; or (3) by stipulation of all the parties.

There are essentially four elements that a party seeking to intervene as of right must establish
before an application for intervention will be granted. Brown & Williamson Tobacco Corp.,
18 S.W.3d at 190-91. The party must show that: “(1) the application for intervention was
timely; (2) [he or she has] a substantial legal interest in the subject matter of the pending
litigation; (3) [the] ability to protect that interest is impaired; and (4) the parties to the
underlying suit cannot adequately represent [that] interest[].” Id. “While the precise nature
of the interest required to intervene as of right has eluded exact definition, it is clear that the
right does not include a mere contingent, remote, or conjectural possibility of being affected
as a result of the suit, but must involve a direct claim on the subject matter of the suit such
that the intervenor will either gain or lose by direct operation of the judgment.” Id. at 192.

        Here, TDHS had a substantial legal interest in the subject matter of the litigation
because it was tasked with ensuring compliance with federal requirements in order to
maintain state funding of Medicaid. Regardless of whether TDHS was involved in the
hearing, it must follow a court order regarding monthly income for the support of the
community spouse. See 42 U.S.C. § 1396r-5(d)(5) (“If a court has entered an order against
an institutionalized spouse for monthly income for the support of the community spouse, the
community spouse monthly income allowance for the spouse shall be not less than the
amount of the monthly income so ordered.”). TDHS would be bound by such an order even
if it would not have granted a deviation from the MMMNA. Blumberg, 2000 WL 1586454,
at *3. The parties, Wife and Husband, could not adequately protect TDHS’s interest because
they were biased in their hope of securing additional income for Wife. Accordingly, we
conclude that TDHS had a substantial legal interest in the subject matter of the suit, that the
interest was impaired, and that the parties to the suit could not adequately protect that
interest. We must now determine whether the motion for intervention was timely.

      “The timeliness of an intervention is governed by equitable principles, and is
determined by the facts and circumstances of each particular case.” Am. Materials Techs.,
LLC v. City of Chattanooga, 42 S.W.3d 914, 916 (Tenn. Ct. App. 2000). In determining
whether an intervention is timely, courts consider,

       (1) the point to which the suit has progressed;

       (2) the purpose for which intervention is sought;

       (3) the length of time preceding the application during which the proposed
       intervener knew or reasonably should have known of his interest in the case;

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       (4) the prejudice to the original parties due to the proposed intervener’s failure
       after he knew or reasonably should have known of his interest in the case to
       apply promptly for intervention; and

       (5) the existence of unusual circumstances militating against or in favor of
       intervention.

Id. “Generally, an applicant for intervention must show proper diligence, and the right to
intervene may be lost by unreasonable delay or laches after knowledge of the suit.” Id.
(citing EEOC v. United Air Lines, Inc., 515 F.2d 946 (7th Cir.1975)). “[I]ntervention may
be timely, after judgment, depending upon the facts.” Id. (citing Hamilton Nat. Bank v.
Woods, 238 S.W.2d 109, 112 (Tenn. Ct. App. 1948)). In such cases, “the rights of the
original litigants [may] not be injuriously affected,” the court must still maintain jurisdiction
over the judgment and subject matter, and “good and sufficient cause” must be “shown for
the delay.” Woods, 238 S.W.2d at 112.

       While the trial court had entered a judgment in the case before TDHS filed its motion
to intervene, TDHS never received notice of the hearing. The motion was filed
approximately 31 days after entry of the order, while the court maintained jurisdiction over
the judgment. Indeed, the motion was filed within the time allotted for filing a Rule 60.02
motion. See Blumberg, 2000 WL 1586454, at *3 (“Once [TDHS] received notice that they
had in fact gone over the MMMNA, [TDHS] could have filed a motion to set aside the
[order] and allow them to intervene.”). Good and sufficient cause was shown for the delay
because TDHS did not receive notice of the hearing until after the order had been entered.
Additionally, the purpose for which intervention was sought, to ensure compliance with
federal law in order to secure federal funding, is paramount.

        We also do not believe that the rights of the parties will be injuriously affected by the
intervention of TDHS. Wife asserted that allowing TDHS to participate in the hearing on
her complaint for spousal support would unnecessarily subject her to another trial. We
disagree. The parties could have notified TDHS of the hearing prior to the court’s ruling on
the matter, thereby precluding any need to revisit the issue at the trial level. We acknowledge
the decision from the middle section in which this court held that TDHS is not entitled to
notice in actions of this nature. Id. at *4. In Blumberg, husband filed a petition against wife,
seeking wife’s marital assets and an increase in the MMMNA. The trial court granted the
motion, but upon approval of wife’s Medicaid application, TDHS denied husband’s request
for an increase in his MMMNA. Husband appealed, and the middle section of this court held
that TDHS was bound to follow the court order awarding husband all of wife’s income,
regardless of whether TDHS received notice of the hearing. Relative to notice, the court held
that while providing TDHS with notice would be good policy, providing notice was not a

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requirement. The court opined that once TDHS received notice of the order, it could have
filed a motion to intervene and to set aside the order. We agree that TDHS is entitled to take
such an action in hopes of overturning an order in similar cases. However, limiting TDHS
involvement in that manner fails to recognize the unique position that TDHS plays in cases
involving Medicaid.

        TDHS is tasked with ensuring compliance with federal law in issues relating to
Medicaid eligibility. If TDHS fails to comply with the federal requirements governing
Medicaid, Tennessee will lose federal funding, placing a large number of individuals at risk
of losing medical assistance. With these considerations in mind, we decline to follow the
reasoning from the decision of the middle section of this court on this issue and conclude that
parties seeking an increase in their MMMNA through the court system should provide TDHS
with notice of the hearing on the complaint. A bright-line rule requiring parties to notify
TDHS when they seek an increase in the MMMNA through the court system encourages
Tennessee’s compliance with federal requirements, while allowing the two independent
avenues of procedure in securing an increase of a community spouse’s MMMNA to remain
mutually exclusive. Accordingly, we conclude that the motion was timely because Wife
failed to notify TDHS of the hearing on the petition. Given these unusual circumstances, we
also conclude that the trial court erred in denying the motion to intervene.

                                              B.

       Having determined that the trial court should have granted the motion to intervene as
of right, we must now address the issue of whether the trial court erred in denying the Rule
60.02 motion to set aside the order. An order may be set aside pursuant to Rule 60.02 of the
Tennessee Rules of Civil Procedure when,

       On motion and upon such terms as are just, the court may relieve a party or the
       party’s legal representative from a final judgment, order or proceeding for the
       following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)
       fraud [], misrepresentation, or other misconduct of an adverse party; (3) the
       judgment is void; (4) the judgment has been satisfied, released or discharged,
       or a prior judgment upon which it is based has been reversed or otherwise
       vacated, or it is no longer equitable that a judgment should have prospective
       application; or (5) any other reason justifying relief from the operation of the
       judgment. The motion shall be made within a reasonable time, and for reasons
       (1) and (2) not more than one year after the judgment, order or proceeding was
       entered or taken.




                                              -7-
Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 834
S.W.2d 289, 294 (Tenn. 1992). The function of the rule is to “strike a proper balance
between the competing principles of finality and justice.” Banks v. Dement Constr. Co., Inc.,
817 S.W.2d 16, 18 (Tenn. 1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.
1976)). “Rule 60.02 is meant to be used only in those few cases that meet one or more of the
criteria stated.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).

        Here, the motion for relief pursuant to Rule 60.02 was filed within a reasonable time
after the order was entered, namely 31 days. In support of its motion to set aside the order,
TDHS alleged that Wife had additional sources of income that were not considered by the
court and that she no longer had an expense that was considered by the court. It is unclear
whether TDHS was asserting that Wife had misrepresented her income and expenses or
whether TDHS was asserting that changes had occurred, justifying reconsideration of the
order. If the former assertion applied, TDHS failed to submit any proof that Wife had
misrepresented her income and expenses. See McCracken v. Brentwood United Methodist
Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997) (“Parties seeking [Rule 60.02] relief
must substantiate their request by clear and convincing evidence.”). If the latter assertion
applied, relief was not available because “Rule 60.02 [wa]s ‘not meant to be used in every
case in which the circumstances of a party change after the entry of a judgment or order.’”
Henderson v. SAIA Inc., 318 S.W.3d 328, 336 (Tenn. 2010) (quoting Toney, 810 S.W.2d at
146).

        Additionally, TDHS asserted that the court failed to enter the requisite finding
pursuant to 42 U.S.C. § 1396-r5(e)(2)(B) that exceptional circumstances justified
impoverishing Husband and awarding Wife all of Husband’s income. We agree that the
court failed to make this finding; however, a mistake of law cannot form the basis for Rule
60.02 relief. Spruce v. Spruce, 2 S.W.3d 192, 195 (Tenn. Ct. App. 1998). TDHS also argued
that sustaining the transfer of marital assets when the requisite finding of exceptional
circumstances had not been made would result in the circumvention of the Medicaid
eligibility process, rendering the process superfluous. While this argument was related to the
claim that the trial court had mistakenly applied the law, it was far enough removed to qualify
as a claim for a general assertion of relief pursuant to Rule 60.02(5). See Duncan v. Duncan,
789 S.W.2d 557, 564 (Tenn. Ct. App. 1990) (providing that Rule 60.02 relief pursuant to the
catch-all provision is “applicable to situations that are not covered by the other clauses in
[Rule 60.02] or to cases of extreme hardship”).

        “Relief under Rule 60.02(5) is only appropriate in cases of overwhelming importance
or in cases involving extraordinary circumstances or extreme hardship.” Lethcoe, 18 S.W.3d
at 624. We believe that this is a case of overwhelming importance and that extraordinary
circumstances have been shown. As discussed previously, failure to follow the federal

                                              -8-
requirements relating to Medicaid eligibility could result in the loss of federal funding,
placing a large number of individuals at risk of losing medical assistance. With these
considerations in mind, we conclude that the court’s failure to issue the requisite finding
provided a sufficient reason to set aside the order. Accordingly, we reverse the order of the
trial court denying the Rule 60.02 motion.

                                   V. CONCLUSION

       The judgment of the trial court is reversed, and the case is remanded for the court to
reconsider Wife’s complaint for spousal support with TDHS participating as an intervening
party. Costs of the appeal are taxed to the appellee, Carol Crisel.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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