IN THE COURT OF COMMON PLEAS FOR THE S'I`ATE OF DBLAWARE

lN AND FOR KENT COUNTY

MATTHEW DUBOVICK
Appellant/ Defendant Below,
C.A. No.: CPUS-lZ-OOI 171

V.

ANGELA ANDREW~WEBB,

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Appcllee/ Plaintiff Below.

John C. Andrade, Esq. Adarn C. Gerber, Esq.

Parkowski, Guerke & Swayze Hudson, Jones, Jaywork & Fisher

116 W. Water Street 225 South State Street

P.O. Box 598 Dover, I)E 19901

Dover, DE 19904 Attomey for the Appellee/ Plaintiff Below

Attorney for the Appellant/ Defendant Below

Trial: June 23, 2()l4
Decided: July 25, 2014

DECISION AFTER TRIAL
This is a civil action arising out of a breach of contract Defendant Below/ Appellant,
Matthew Dubovick, frled an appeal with this Couz“t against Plaintiff Below/ Appellee, Angela
Andrew~Webb, for a trial de novo from a final order of the justice of the Peace Court. Ms.
Andrew-Webb contends Mr. Dubovick breached an agreement to split the cost of an in vitro

fertilization (“IVF") procedure l\/Is. Andrew~Webb maintains that as a result of Mr. Dubovick’s

failure to pay the debt, she is entitled to an award of $l(),168.43 from the Court. Mr. Dubovick
contends that he rrevei‘ agreed to pay for the procedure. Following trial on this inatter, the Court
enters judgment for Ms. Aiidrew~webb and against Mr. Dubovick in the amount of $10,168.43

plus court costs and pre and post-judgment interest at the legal rate of 5.75% from May 17, 2012.

FACTS

In Noven1berof2009, Ms. Angeia Andrew-Webb and Mr. Matthew Dubovicl< entered
into a romantic relationship 'l` he parties’ relationship became serious, even planning to inarry.
ln the sunnner of 2010, the parties decided to conceive a child together. In October of 2010, Ms.
Andrew-Webb suffered a miscarriage

In early 201 l, the parties consulted a reproductive specialist to discuss the possibility of
using IVF to conceive a child. 'l`lie parties were aware the IVF process was costly and that it
required not only the initial procedure, but also several tests and medications. Around April of
201 l, the parties orally agreed to split the cost of the IVF after multiple discussions during their
nightly baths. They agreed that Mr. Duhovick would reinihurse Ms. Aridrew-Webb for his share
of the costs, amounting to $10,168.43, when he sold his home Ms. Andrew-Wet)b would not
have gone forward with the procedure without Mr. Dubovick’s agreement to pay for half of the
costs.

Ms. Aiidrew-Webb paid the full amount of the IVF procedure, $20,336.86, out of her
savings Mr. Dubovick paid for his tests and half of the cost of the high-risk doctor Ms. Andrew-
Webb consulted In june 01°2011, the IVF procedure was performed and Ms. Andrew-Webb
conceived a child. 011 August 12, 2011, Mr. Dubovick sold his home; liowever, he received less
money from the sale than expected. Additiorially, Mr. Duboviclc had a substantial amount of

credit card debt at this time As a result, Ms. Andrew~Webb gave Mr. Dul)ovick a grace period

for paying back his share of the IVF procedure to her so that he could pay down his credit card
bills. Ms. Aitdrew~Webb zievei‘ told Mr. Dubovick he was no longer obligated to reimburse her;
however, she did not ask iiirn for the inoney during the reinaiiidei' of their relationship

0n Febxuary 9, 2012, Ms. Andrew-Webb gave birth to the parties’ son, Derek. On or
about April l7, 2012, the parties ended their relationship (Def.’s Ex. 3). On or about April lt§,
2012, Mr. Dubovick moved out of Ms. Andrew-Webb’s house (Def.’s Ex. 3). On or about May
l'/, 2012, I\/is. Andrew-Webb requested for the first time that Mr. Dubovick pay his portion of
the IVF procedure (Def’s Ex. 3). Ms. Aiidrew-Webb subsequently asked Mr. Dubovick
numerous times to pay his half of the procedure, but he either denied owing the debt, gave an
excuse, ' or ignored her demands Mr. Dubovicl< failed to reimburse Ms. Andrew-Webb for his
half of the IVF procedure costs, resulting in this suit to enforce the contract between Ms.
Andrew-Webb and Mr. Dubovicl<.

Ms. A.iidrew-Webb contends that she and Mr. Dubovicl< contracted to split the costs of
the IVF procedure. She asserts that she is entitled to $10,168.43 pursuant to Mr. Dubovick’s
breach of contract when he failed to repay his half of the procedure costs. Mr. Dubovicl<

contends that he is not liable because Ms. Andrew-Webb agreed to pay the total costs of the IVF

procedure

DISCUSSION
For a breach of contract action, the plaintiff must prove by a preponderance of the

evidence: "(l) a contractual obiigation; (2) a breach of that obiigaticn; and (3) damages resulting

l One of Mr. Dubovick’s excuses was that he would repay the debt when he was able to get back
on his feet Since the beginning of the coupie’s relationship, Mr. Dubovick has purchased four
or five new vehicles At trial, Mr. Dubovicl< admitted that he iiad a history of spending money
when he was depressed.

from said breacli." first State Consz., Inc. v. Thoro~Good’s Corzcre:a Co., Inc., 2010 WL
1782410, at *3 (Del. Super. May 3, 2010).

First, the Court concludes that an oral contract existed between Ms. Aridrew-Webb and
Mr. Dubovick whereby Mr. Dubovick agreed to pay Ms. Andrew-Webb half the costs of the IVF
procedure when he sold his liouse. The Court finds Ms. Andrew-Webb’s testimony credible
regarding the fact she would not have gone through with the IVF procedure but for Mr.
Dubovicl<’s promise to pay for lialf of the costs. Both of the parties testified they wanted a child.
They consulted the reproductive specialist, went to doctor’s visits together, and submitted to the
requisite testing for the IVF procedure. Mr. Dubovick paid for his testing and half of Ms.
Andrew~Webb’s visits to a hi gh»risk doctor during the tenn of her pregnancy. Ms. Andrew~
Webb has proven by a preponderance of the evidence that there was a contract between the
parties to split the costs of the procedure and that Mr. Duboviclc’s payment was due upon the
closing of the sale on his house

Second, the Court finds Mr. Dubovick breached the contract when he sold his house and
did not reimburse Ms. Andrew~Webb for the costs of the IVF. After the breach occurred, Ms.
Andrew-Webb merely instituted a grace period for Mr. Dubovick to pay; however, the debt was
due and payable at any time after Mr. Dubovick sold his house, pursuant to the terms of the
pai“ties’ contract, and certainly by the time of Ms. Andrew»Webb’s demand for payment on May
l7, 2012.

Finally, the Court finds that the damages Ms. Andrew~Webb is seeking arc a direct result
from the breach of contract. But for Mr. Dubovick’s failure to pay his share for the IVF
procedure, Ms. Andrew-Webb would not have brought this suit seeking $10,168.43 for half of

the costs of the procedure As a result, the Court concludes that Ms. Andrew-Webb has proven

by a preponderance of the evidence that Mr. Dubovick is liable to her for breach of contract and

enters judgment accordingly

CONCLIJSION
As a result of the Couit’s finding of fact, which is based upon the entire record, including
all direct and circumstantial evidence, and all references resulting therefrorn, and the Court’s
above-referenced conclusions of law, the Court enters judgment for the Plaintiff Below/
Appellee, Angela Andrew-Webb, and against the Defendarit Belowf Appellarit, Matthew
Dubovick, in the amount of $10,168.43, plus court costs and pre and post-judgment interest at

the legal rate ofS.”/S% from May 17, 2012.
rr rs so ouoEREu this 25"* day ar JULY, 2014.

friend/liar

CI~IARLES W. WELCH
JUDGE

