FILED
AUGUST 18, 2026
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Marriage of ) No. 40697-1-III )
BRANDON PABLO, )
)
Respondent, )
) UNPUBLISHED OPINION and )
)
ZOIE PABLO, )
)
Appellant. )
MURPHY, J. — Brandon Pablo and Zoie Pablo1 are divorced parents to A.P. Their original 2022 parenting plan provided for 50/50 residential time, joint decision-making, and no restrictions on either parent. In May 2023, Zoie petitioned to modify the plan, seeking designation as the primary residential parent and restrictions on Brandon under RCW 26.09.191. She alleged (1) Brandon’s brother Jordan, who lived in Brandon’s home, was under investigation for sexually assaulting A.P., (2) two of Brandon’s brothers, Jordan and Jared, engaged in a physical altercation in A.P.’s presence, and (3) Brandon neglected his parenting duties by relying on others.
1 For clarity, we refer to the parties by their first names as they all share the last name Pablo. No disrespect is intended.
In re Marriage of Pablo After a hearing, the trial court modified the parenting plan to give Brandon approximately 43 percent residential time. The trial court did not impose RCW 26.09.191 restrictions on Brandon and expanded joint decision-making. The court made no findings on the veracity of the molestation allegations against Jordan or the assaultive behavior between Jordan and Jared. It ordered Jared restrained from contact with A.P. until he completed anger management and directed that A.P. not be left alone with either Jared or Jordan.
Zoie appeals arguing the trial court (1) applied the wrong standard for a major modification, (2) failed to consider A.P.’s best interests by ordering substantial residential time in the same home as Jordan and Jared, (3) lacked sufficient evidence to find the issues with Jordan and Jared were mostly resolved, and (4) erred by not imposing limitations on Brandon based on his nonperformance of parenting duties.
Brandon responds that the trial court applied the correct standard, that Zoie improperly included materials in the clerk’s papers, and that Zoie failed to provide an adequate record on appeal.
We hold the trial court used the correct standard to find a substantial change in circumstances warranting a major modification but abused its discretion by failing to make adequate findings identifying the specific nature of the harm to A.P. and by failing
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In re Marriage of Pablo to fashion a remedy narrowly tailored to that harm. We affirm in part, reverse in part, and remand for further proceedings.
FACTS
Background Brandon and Zoie married in August 2018 and have one child, A.P. Brandon petitioned for dissolution in May 2020. After separation, Brandon moved in with his parents. The dissolution was contentious, with mutual petitions for protection orders.
In March 2022, the trial court entered a final parenting plan with joint decision-
making for education, healthcare, and childcare, and a 50/50 week-on/week-off residential schedule. No limitations were imposed on either parent. Emergency and temporary orders In April 2023, Zoie moved for an immediate restraining order. She alleged A.P.
disclosed Jordan inappropriately touched A.P. and Jordan lived with Brandon, that A.P. witnessed a fight between Jordan and Jared, and that Brandon failed to inform her or protect A.P. Zoie reported the matter to CPS.2 The trial court granted temporary relief, placed A.P. primarily with Zoie, and ordered that A.P. shall not be in the presence of or
2 Child protective services.
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In re Marriage of Pablo have contact with Jared or Jordan. Brandon could exercise residential time at his aunt and uncle’s residence. Modification proceedings On May 3, 2023, Zoie petitioned for a major modification, requesting sole decision-making and that Brandon have visitation every-other-weekend. Temporary orders limited Brandon’s time with A.P. while the petition was pending.
A multi-day trial occurred in May 2024.3 On June 7, 2024, the trial court issued an oral ruling. The court found a substantial change in circumstances based on the allegations in Brandon’s household, Brandon’s response to those allegations, and evidence that Brandon was not primarily performing parenting duties. The court concluded A.P.’s current situation was harmful and that modification was in her best interest. The court noted Brandon himself had not abused A.P., loved her, and was protective, but expressed concern that he discounted A.P.’s disclosure, failed to communicate with Zoie, and over-relied on his mother for parenting help. As to the alleged sexual abuse, the court stated its uncertainty on whether “anything occurred” and further stated “the matter has been closed.” Rep. of Proc. (RP) (Jun. 7, 2024) at 6. Regarding the domestic violence that allegedly occurred in A.P.’s presence, the trial court
3 No report of proceedings was provided for this trial, but Zoie did provide a report of proceedings for the trial court’s oral ruling.
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In re Marriage of Pablo noted “some incidents” occurred, noted Zoie’s concerns “about the fights and violence” in the household, and stated its concern that Brandon failed to inform Zoie of the incidents. RP (Jun. 7, 2024) at 5, 7. As to Brandon’s lack of independence in parenting and lack of personal involvement, the court noted “families are incredible and they can be super helpful,” but “at some point . . . there’s a line that gets crossed, and it seems that here that that has happened.” RP (Jun. 7, 2024) at 7-8.
As to Zoie’s parenting, the trial court commented that Zoie has had “two serious boyfriends during this proceeding alone who she lived with and who have cared for [A.P.]. That’s not nothing.” RP (Jun. 7, 2024) at 9. The court expressed concern that Zoie “seemed almost offended” when asked whether she had performed a background check on either man, concluding, “That’s nothing to be offended about; that’s how [you would] protect your child.” RP (Jun. 7, 2024) at 9.
Ultimately, the trial court concluded it did not have “any current concerns about the adults in either home.” RP (Jun. 7, 2024) at 9. Specific to Jordan and Jared, the court found: “[T]he issues that initially led to this modification, Jordan and Jared, have mostly been resolved.” RP (Jun. 7, 2024) at 10. The trial court also found it would be “potentially impractical to continue a 50[/]50 plan,” given that Brandon’s drive to A.P.’s school could be up to an hour-and-a-half each way. RP (Jun. 7, 2024) at 9-10.
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In re Marriage of Pablo On July 12, 2024, the trial court entered written findings and a final parenting plan approving a major modification. The court found the requested change to be in “the child’s best interest” and based on “a substantial change in the child’s situation or in the situation of the parent who did not request the major change.” CP at 26. The court gave three reasons for the change: (1) the “impracticality” of continuing a 50/50 plan, (2) the “allegations in [Brandon]’s household,” and (3) “[Brandon]’s response to those allegations.” CP at 26. The trial court also found Zoie’s “concern that [Brandon] is not actually doing the parenting is supported by credible evidence.” CP at 26. Ultimately, the court concluded A.P.’s current situation is harmful to her “physical, mental, or emotional health,” and “[i]t would be better for the child to change the order.” CP at 26.
The court awarded Zoie primary residential status with Brandon receiving every-
other-week from Thursday-to-Monday and alternating Wednesday-to-Friday blocks (approximately 43 percent time), plus a week-on/week-off schedule in the summer. Joint decision-making continued. Jared was restrained from contact until completing anger management; Jordan could not be left alone with A.P.
Zoie’s motion for reconsideration was denied.
Zoie appeals.
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In re Marriage of Pablo Motions while appeal has been pending Zoie filed her opening brief and designated clerk’s papers and report of proceedings with this court. Brandon filed a motion to strike, requesting this court essentially strike all the clerk’s papers, including the original parenting plan, petition for dissolution, immediate restraining order, and more. He argued that all of the contested clerk’s papers contained unadjudicated facts and evidence not admitted at trial, in violation of RAP 9.2 and RAP 9.6.
This court’s commissioner denied Brandon’s motion to strike. A panel of judges denied Brandon’s motion to modify the commissioner’s ruling.
ANALYSIS
We review parenting plan modifications for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). We give great deference to the trial court and uphold a “court’s findings of fact if they are supported by substantial evidence.” In re Parentage of J.H., 112 Wn. App. 486, 492, 49 P.3d 154 (2002). We review the trial court’s conclusions of law de novo. Hoover v. Warner, 189 Wn. App. 509, 520, 358 P.3d 1174 (2015). Credibility determinations are not subject to review. In re Marriage of DewBerry, 115 Wn. App. 351, 362, 62 P.3d 525 (2003).
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In re Marriage of Pablo 1. Record on review Brandon challenges the record noting Zoie did not provide a verbatim report of the proceedings and argues this court should decline review. Under RAP 9.2, the appellant bears the burden of perfecting the record. When an appellant fails to provide a report of proceedings, we ordinarily treat the trial court’s findings of fact as verities on appeal, provided they are supported by the record that does exist. Morris v. Woodside, 101 Wn.2d 812, 815, 682 P.2d 905 (1984).
However, the absence of a transcript does not preclude all review. See State v.
Waits, 200 Wn.2d 507, 509-10, 520 P.3d 49 (2022). The clerk’s papers, including the trial court’s detailed written findings, are part of the record. The issues were fully litigated below, and we treat the written findings as verities while reviewing de novo whether they are legally sufficient and whether the court abused its discretion in fashioning the remedy. We therefore proceed to the merits. 2. Major modification standard Zoie contends the trial court applied the wrong standard arguing the court imposed a major modification while applying the standard for a minor modification. We disagree.
RCW 26.09.260(1) requires a substantial change in circumstances of the child or nonmoving party since the prior plan and that modification is in the child’s best interest.
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In re Marriage of Pablo Former RCW 26.09.260(1) (2009).4 For major modifications that significantly alter the residential schedule, the court must consider whether the present environment is detrimental to the child’s physical, mental, or emotional health and whether the benefits of change outweigh the harm. Former RCW 26.09.260(2)(c) (2009). The statute provides an exception when the proposed change constitutes a minor, rather than a major, modification. Former RCW 26.09.260(5) (2009). Minor modifications may be ordered when a substantial change in circumstances makes the residential schedule impractical. Former RCW 26.09.260(5)(b) (2009).
Here, the trial court found a substantial change based on the allegations made relative to what was occurring in Brandon’s household, Brandon’s response, the impracticality of continuing a 50/50 schedule due to travel, and evidence supporting Zoie’s concern that Brandon was not primarily performing parenting duties. The court explicitly found the child’s current situation harmful and that change would be better. These findings satisfy the major modification standard.
Although the oral ruling contained some imprecise language suggesting a lower standard for 50/50 plans, the written findings control and are sufficient. See Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963) (holding an oral ruling is not final or
4 The legislature revised RCW 26.09.260, effective July 27, 2025. However, the relevant language remained the same.
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In re Marriage of Pablo binding, unless formally incorporated into the findings, conclusions, and judgment); see also In the Matter of C.A.S., 25 Wn. App. 2d 21, 30 n.3, 522 P.3d 75 (2022). 3. Best interests of the child Zoie contends the trial court failed to consider A.P.’s best interests when it ordered A.P. to spend substantial residential time with Brandon in his parents’ home. Zoie argues the court’s focus was on Brandon and his parents, and not A.P., such that the court failed to protect A.P. from future sexual abuse and domestic violence by placing her in the same home as her alleged abuser and where she was exposed to domestic violence.
To change the child’s residential schedule by imposing a major modification, the trial court must find that the “child’s present environment is detrimental to the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage . . . to the child.” RCW 26.09.260(2)(c) (2009). A finding that modification is justified does not relieve the trial court of its obligation to fashion a remedy that protects the child from the identified harm and that serves the child’s best interests. RCW 26.09.002.
Here, the trial court failed to consider the best interests of the child because its modifications do not protect A.P. from the circumstances justifying a major modification. The trial court found modification to be in the child’s best interest and found there was “a substantial change in the child’s situation or in the situation of the parent who did not
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In re Marriage of Pablo request the major change.” CP at 26. The trial court identified three bases for approving a major modification: the allegations in Brandon’s household, Brandon’s response to them, and his nonperformance of parenting duties. The trial court further specified “[t]he child’s current living situation is harmful to their physical, mental, or emotional health.” CP at 26.
Yet the trial court did not identify how A.P.’s current living situation is harmful, nor did it identify how the imposed modifications alleviate the risk of harm. Furthermore, the court, in its oral ruling, identified that the issues related to Jordan and Jared “have mostly been resolved,” but did not identify how such issues have been resolved, nor how the modified parenting plan would protect A.P. from any unresolved concerns.
The modified plan continues substantial residential time in the same household where the alleged abuse and domestic violence occurred, relies on Brandon to enforce restrictions on Jordan,5 and otherwise imposes only modest adjustments to the parenting plan. The court made no findings as to how Brandon’s failure to respond to A.P.’s allegations of abuse harmed A.P. nor how the alleged domestic violence harmed A.P. The
5 The trial court’s modified parenting plan specifically ordered Jared “restrained from contact” with A.P. until he provided proof of completion for an anger management course, and ordered that Jordan “shall not be left alone” with A.P. CP at 8. Because the trial court lacked authority to order Jordan or Jared to take any action, given they were not parties to the proceeding, we interpret the court’s order as imposing duties on Brandon.
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In re Marriage of Pablo trial court also did not articulate how the chosen schedule mitigates the identified harms. We acknowledge that allegations of sexual abuse, standing alone and without a judicial determination of their validity, are generally insufficient to support a major modification. In re Marriage of Watson, 132 Wn. App. 222, 233, 130 P.3d 915 (2006). However, it is unclear from the record on review to what extent the trial court relied on A.P.’s allegations against Jordan when granting a major modification.
In essence, the record does not indicate the specific nature of the harm to the child, nor how the modification addresses that harm (or those harms). Because the trial court failed to make findings that specify the nature of the harm and because the modified parenting plan does not protect A.P. from that harm, we hold the court abused its discretion in fashioning a remedy. We remand for the trial court to enter supplemental findings and enter a modified parenting plan tailored to address such findings. The trial court may, in its discretion, reopen the record for additional evidence if needed. 4. Domestic violence Zoie impliedly argues the single altercation between Jordan and Jared in A.P.’s presence required mandatory limitations under RCW 26.09.191(2).
We review issues of statutory construction de novo. Rodriguez v. Zavala, 188 Wn.2d 586, 591, 398 P.3d 1071 (2017). “In applying rules of statutory construction to the unambiguous language of a statute,” we give words “their plain and ordinary meaning
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In re Marriage of Pablo unless a contrary intent is evidenced in the statute.” In re Marriage of Caven, 136 Wn.2d 800, 806, 966 P.2d 1247 (1998).
Former RCW 26.09.191(2)(b) (2022) requires the court to limit a parent’s residential time if it finds that the parent resides with a person who has engaged in “a history of acts of domestic violence as defined in RCW 7.105.010 or an assault or sexual assault that causes grievous bodily harm or the fear of such harm or that results in a pregnancy.” Regarding domestic violence, the statute’s use of the word “history” and the plural “acts” connotes more than a single isolated incident. See In re Marriage of C.M.C., 87 Wn. App. 84, 88-89, 940 P.2d 669 (1997). The statute’s subsequent reference to a singular “assault or sexual assault” further indicates the legislature intended to distinguish between a history of domestic violence or one serious incident. See id.
Here, the record is unclear as to whether the trial court found one or more acts of domestic violence occurred in Brandon’s household. In its oral ruling, the trial court stated, “[S]ome incidents came to light that occurred at the father’s home when [A.P.] was present. This was fighting between [Brandon’s] two brothers, Jared and Jordan, as well as his father.” RP (Jun. 7, 2024) at 5 (emphasis added). It further stated that Zoie had “concerns about the fights and violence . . . in the household” and noted Brandon’s “willingness to . . . downplay the events.” RP (Jun. 7, 2024) at 7 (emphasis added).
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In re Marriage of Pablo The trial court’s use of plural “incidents,” “fights,” and “events” infers more than one act occurred, which would thus require restrictions on Brandon’s residential time. However, in her motion for an immediate restraining order, Zoie referenced one singular fist fight between Jordan and Jared occurring on March 29, 2023. Additionally, the trial court did not make an express finding of a history of acts of domestic violence.
We remand for the trial court to enter findings as to the domestic violence in Brandon’s household and to determine whether restrictions are required under RCW 26.09.191. 5. Substantial nonperformance of parenting functions Zoie contends the trial court erred by not imposing restrictions under RCW 26.09.191 on Brandon’s parenting time or decision-making after it found that Zoie’s “concern[ ] that [Brandon] is not actually doing the parenting is supported by credible evidence.” CP at 26.
Former RCW 26.09.191 (2022) provides two pathways to restrict a parent’s residential time and decision-making for nonperformance of parenting functions. When the trial court finds a parent has engaged in “willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions,” the trial court must impose restrictions on residential time and decision-making. Former RCW 26.09.191(1)(a), .191(2)(a)(i) (2022). Alternatively, former RCW 26.09.191(3)(a) (2022)
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In re Marriage of Pablo permits a court to limit any provision of a parenting plan if the court finds, among other factors, “[a] parent’s neglect or substantial nonperformance of parenting functions.” The distinction between “refusal” and “nonperformance” is meaningful. “Refusal” implies a deliberate, willful rejection of parental responsibilities. See WEBSTER’S THIRD NEW INT’L DICTIONARY 1910 (1993) (defining “refusal” as “the act of refusing or denying.”) “Nonperformance” may encompass a broader range of circumstances, including inability, neglect, or simple failure to engage. See WEBSTER’S, supra, at 1538 (defining “nonperformance” as “neglect or failure to perform.”)
The trial court here found credible evidence Brandon was “not actually doing the parenting.” This finding equates to substantial nonperformance, not substantial refusal. Here, the court, exercising its discretion consistent with RCW 26.09.191(3), chose not to impose limitations. On the record before us, we cannot conclude that the court’s choice to exercise its discretion in this manner—rather than imposing additional limitations—was manifestly unreasonable. We affirm the trial court’s decision not to impose further .191 limitations on this ground. 6. Attorney fees Brandon asks this court to order Zoie pay his attorney fees on appeal because (1)
she failed to provide an adequate record, which meant there was no merit to her arguments on appeal, and (2) the parties’ financial disparity.
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In re Marriage of Pablo This appeal presented difficult and close questions regarding the adequacy of findings, the tailoring of remedies in major modification cases, and the interplay between RCW 26.09.260 and .191. The results are mixed. Under these circumstances, given that neither party clearly prevailed, we decline to award attorney fees.
CONCLUSION
We hold the trial court applied the correct standard for a major modification. We affirm the trial court’s decision not to impose limitations based on RCW 26.09.191 based on the record before us.
We otherwise reverse the modified final parenting plan and the final order and findings on petition to change a parenting plan. We remand for supplemental findings and a modified parenting plan consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
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Murphy, J.
WE CONCUR:
_________________________________ _________________________________ Staab, C.J. Cooney, J.