Janet Lynn Kirk v. Mary Ann Osterbeck, 329377

Plaintiff (Kirk) and William divorced in 1994; the Consent Judgment awarded plaintiff 50% of the current value of William’s pension for the marriage period and directed entry of a QDRO but said nothing expressly about survivor benefits.
In 1995 plaintiff’s attorney (defendant Osterbeck) drafted and the court entered a QDRO that treated plaintiff as the surviving spouse for pension benefits; the QDRO was signed by counsel but not by the parties.
William remarried Presley in 2005, retired in 2007 (designating Presley as surviving spouse), and died in 2011; Presley moved to amend the QDRO to obtain survivor benefits.
At the hearing the trial court (Judge Lane) relied on Quade and Roth and found the Consent Judgment silent as to survivor benefits, struck the QDRO’s surviving-spouse language in favor of Presley, and denied reconsideration after finding Neville/Thornton factually distinguishable; this Court of Appeals later reversed and reinstated the QDRO.
Plaintiff sued Osterbeck for legal malpractice, alleging failure to (a) cite controlling cases (Thornton and Neville) and (b) present affidavits of William’s intent; Osterbeck moved for summary disposition arguing lack of causation and protection by the attorney-judgment rule.
The trial court granted summary disposition for Osterbeck; the Court of Appeals affirmed, holding plaintiff could not prove but-for causation because Judge Lane expressly found Neville/Thornton inapplicable and declined to rely on extrinsic evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Osterbeck’s failure to cite Thornton/Neville was negligent and proximately caused plaintiff’s loss	Failure to cite controlling cases deprived Kirk of a proper defense and caused her to lose benefits and incur appeal costs	Judge Lane found Thornton/Neville factually distinguishable; thus omission could not be shown to have changed outcome	No causation — summary disposition affirmed
Whether failing to supply witness affidavits showing William’s intent was a proximate cause of harm	Affidavits would have shown consent/intent and prevented amendment of the QDRO	Judge relied on the Consent Judgment’s text and found extrinsic evidence unnecessary; affidavits would not likely have altered ruling	No causation — speculative and insufficient
Whether attorney-judgment rule shields Osterbeck’s litigation choices	Osterbeck should have used the controlling precedents rather than an unpublished case	Osterbeck’s tactical/legal choices are protected absent clear incompetence	Court concluded causation failure dispositive; also noted no breach shown as matter of law
Whether plaintiff may recover appellate fees/emotional damages absent malice/fraud	Fees and emotional distress flowed from Osterbeck’s negligence	Recovery of appellate fees requires malice, fraud, or similar conduct; none alleged	Damages theory rejected as unnecessary to resolve because causation lacking

Quade v. Quade, 238 Mich App 222 (1999) (separate pension components — including survivorship — must be specifically awarded in a divorce judgment to be enforced by QDRO)
Roth v. Roth, 201 Mich App 563 (1993) (same rule regarding specific award of pension components)
Neville v. Neville, 295 Mich App 460 (2012) (a consensual QDRO entered pursuant to a divorce judgment can modify and become part of the consent judgment)
Thornton v. Thornton, 277 Mich App 453 (2007) (QDROs entered by consent can be incorporated into a consent judgment and control property division)
Winiemko (Charles Reinhart Co. v. Winiemko), 444 Mich 579 (1994) (elements and proximate-cause standard for legal malpractice actions)