FILED APRIL 9, 2024 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In the Matter of the Parentage of ) ) No. 39060-8-III RUSSELL ALLEN LEWIS PABLO ) ) Petitioner, ) ) and ) UNPUBLISHED OPINION ) JACQUELINE LEILONI CHOW HOY, ) ) Respondent. )
STAAB, A.C.J. — Jacqueline Chow Hoy appeals the trial court’s decision
regarding a permanent residential plan for her child, K.P. She argues that the trial court
erred by drawing presumptions from the temporary parenting plan, in violation of RCW
26.09.191(5). In addition, she contends that the trial court erred in its application of
RCW 26.09.187 when it awarded placement with the father and ex-husband, Russell
Pablo. We find no abuse of discretion and affirm.
BACKGROUND
The following facts are unchallenged.
Jacqueline Chow Hoy and Russell Pablo are the parents of K.P., age 8. The
parties were married for approximately five years before they separated. After their
divorce, a joint parenting plan was entered in the Pima County Superior Court of No. 39060-8-III Pablo v. Chow Hoy
Arizona. In this order, the parties were to share substantially equal parenting time with
K.P. on a month-to-month basis, with exchanges occurring on the 15th of each month.
When this parenting plan was entered, Chow Hoy was residing in Arizona and Pablo had
relocated to Spokane for work.
In July 2021, Pablo filed a petition to modify the parenting plan in Spokane
County. The petition alleged Chow Hoy had relocated to Virginia and the parties needed
to determine a school schedule. Each parent sought to be the primary residential parent.
While the petition was pending, the court entered a temporary plan, awarding primary
placement with Pablo. This plan allowed Chow Hoy visitation one weekend per month
in Spokane and required her to give Pablo 30-day’s notice if she planned to exercise
visitation.
The following year a trial was held. Testimony was offered by both parties,
Pablo’s mother and father, his neighbor, K.P.’s teacher, and Chow Hoy’s fiancé. After
considering the factors set out in RCW 26.09.187(3)(a), the court found they weighed
slightly in favor of Pablo. Of the factors under this statute, only three are at issue: factor
one, three, and five. The court made the following oral finding relating to factor one,
“the relative strength, nature, and stability of the child’s relationship with each parent,”
determining it was neutral:
Both parties have developed strong bonds with [K.P.] while also enduring periods of long absences. Although Mr. Pablo may have to travel for work, he and [K.P.] have an incredibly strong, [sic] bond, perhaps due to their
2 No. 39060-8-III Pablo v. Chow Hoy
mutual interests. Since his birth, Mr. Pablo has taken an active role in parenting [K.P.], putting [K.P.]’s needs above his own.
Likewise, Ms. Chow Hoy and [K.P.] have an incredibly strong bond. She is the parent who has historically had more time with [K.P.] and, like Mr. Pablo, always seems to be looking out for [K.P.]’s best interest.
Rep. of Proc. (RP) at 371-72. Although the court found that Pablo was periodically away
from K.P. for work, it also determined that “‘stability’ is not synonymous with
availability or consistency.” RP at 368-69. Instead, the court concluded that “stability”
is defined as “firmly established or not changing or fluctuating,” and “refers to the type of
relationship the child has with the parent, not the frequency of contact between the two.”
RP at 368-69.
The court then discussed the third factor, which it also found to be neutral.1 The
court explained that it was not able to find whether either parent provided a greater
amount of parenting functions and that it seemed “they both provide[d] parenting
functions at different levels during different periods of time.” RP at 373. It found that
between 2016 and 2018 Chow Hoy spent the majority of her evenings working toward
her master’s degree and was also unavailable during the six months she was deployed in
Qatar in 2018. On the other hand, “Pablo’s employment prevented him from being able
1 RCW 26.09.187(3)(a)(iii): “Each parent’s past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child.”
3 No. 39060-8-III Pablo v. Chow Hoy
to parent all but two weeks” between January 2019 and September 2019. RP at 373. In
addition, “[b]etween November 2019 and May 2020, Mr. Pablo had limited contact with
[K.P].” RP at 373. “Lastly, since September 2021, Ms. Chow Hoy has been largely
unavailable to parent due to her residing in Virginia.” RP at 373. During this time, she
only saw “[K.P.] in person on Thanksgiving, winter break, spring break, and during trial”
despite the fact she had “30-plus days of annual leave” she could have used to travel and
see him in Spokane. RP at 373.
The court also found that both parents had been actively involved in K.P.’s
education in vastly different ways. “Chow Hoy was instrumental in supporting [K.P.] in
Montessori school,” whereas Pablo had taken on “nearly all of [K.P.]’s educational
needs” and “was the parent who primarily transported him to and from daycare.” RP at
373-74.
The court further noted that it did not have concerns relating to either parent’s
ability to provide parenting functions. Both are excellent parents who put K.P.’s needs
before their own. It found that although Chow Hoy lived across the country, she attended
conferences by phone or over tablet while Pablo attended school conferences in person.
In addition, Pablo volunteered at field trips and spoke with teachers weekly. The court
found “both parents are focused on [K.P.]’s education, extracurricular activities,
healthcare, and his daily needs,” making the third factor neutral. RP at 374.
4 No. 39060-8-III Pablo v. Chow Hoy
Finally, the court discussed the fifth factor, finding that it weighed in favor of
Pablo:2
Although the temporary order cannot and will not be used to decide this case or prejudice Ms. Chow Hoy, the court is called upon to consider [K.P.]’s present environment and potential environment in Virginia. Currently, the only surrounding familiar to [K.P.] is in Spokane. He attends kindergarten here, has made numerous friends here, attends Muay Thai here, and has both a doctor and dentist here. Importantly, both of [K.P.]’s grandparents live in the state and spend a substantial amount of time with him. . . . Regardless of whether Mr. Pablo is required to travel for work, they spend at least one week per month in Mr. Pablo’s home. They even have their own furnished bedroom there. Mr. Pablo’s parents traveled to Arizona for [K.P.]’s birth and stayed for two to four months. Following that period, Mr. Pablo’s parents made monthly trips to visit the family until 2018, at which point, due to Ms. Chow Hoy’s prompting, they reduced their visits to every couple of months. Since [K.P.]’s birth, Mr. Pablo’s parents have been significant people in his life. In addition to [K.P.]’s Godparents [sic] living in Spokane, Mr. Pablo has family in the Tri-Cities, Moses Lake, Wenatchee, and Marysville.
Although [K.P.] may have been enrolled in martial arts in Virginia, he has not attended school there, has not developed deep friendships there, and, most importantly, other than Mr. Weltha, whom [K.P.] has only been acquainted with sporadically since 2020, he does not have any family or other significant relationships in Virginia. Traditionally, due to COVID-19 and distance, [K.P.] only sees Ms. Chow Hoy’s parents about twice per year. If [K.P.] is to primarily reside in Virginia, he would attend Stratford Landing Elementary, a reportedly six out of ten school. Other than the midpoint in ranking, the court does not know anything else about this school.
2 RCW 26.09.187(3)(a)(v): “The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities.”
5 No. 39060-8-III Pablo v. Chow Hoy
Over the past nine months in Spokane, [K.P.] has thrived. He’s doing phenomenal in school. According to his teacher, Ms. Martin, [K.P.] has only missed one day of school all year, is working above grade average, is typically the first student to arrive at class, loves to learn, and has a great relationship with his classmates. This factor strongly weighs in Mr. Pablo’s favor.
RP at 375-77.
Based on these findings, and the factors set out in RCW 26.09.187(3)(a), the court
found by the “slightest of margins” they weighed in favor of Pablo. RP at 378. The final
parenting plan placed K.P. in Pablo’s care. Chow Hoy filed a motion for reconsideration,
which was denied and this appeal follows.
ANALYSIS
Chow Hoy contends that the trial court erred by ignoring RCW 26.09.191(5) and
drawing presumptions from the provisions in the temporary parenting plan when entering
the final permanent parenting plan. Specifically, some of the facts the court found
persuasive existed only because Pablo was awarded primary placement in the temporary
plan. In addition, she argues that the court erred in its application of RCW
26.09.187(3)(a) when it found two of the factors neutral and one in favor of Pablo.
“We review the provisions of a parenting plan for abuse of discretion.” In re
Marriage of Abbess, 23 Wn. App. 2d 479, 484, 516 P.3d 443 (2022). A court abuses its
discretion if its decision is “unreasonable or based on ‘untenable grounds or reasons.’”
Id. at 484 (internal quotation marks omitted) (quoting In re Marriage of Horner, 151
6 No. 39060-8-III Pablo v. Chow Hoy
Wn.2d 884, 893, 93 P.3d 124 (2004). A court’s decision will be considered
“unreasonable” if it is not within “‘the range of acceptable choices, given the facts and
the applicable legal standard.’” Id. at 484 (quoting Horner, 151 Wn.2d at 893). A
court’s decision “‘is based on untenable grounds if the factual findings are unsupported
by the record; and it is based on untenable reasons if it is based on an incorrect standard
or the facts do not meet the requirements of the correct standard.’” Id. (quoting Horner,
151 Wn.2d at 894).
RCW 26.09.191 provides restrictions for temporary or permanent parenting plans.
Of these provisions, RCW 26.09.191(5) states that “in entering a permanent parenting
plan, the court shall not draw any presumptions from the provisions of the temporary
parenting plan.” Instead, “‘[t]he Parenting Act [of 1987, chs. 26.09, 26.10 RCW,]
anticipates that the court will craft a child’s permanent residential schedule based on the
best interests of the child, as they can be determined at the time of trial.” Id. at 485. In
doing so, the court will consider the following factors where the limitations of RCW
26.09.1913 are not dispositive of the child’s residential schedule:
(i) The relative strength, nature, and stability of the child’s relationship with each parent;
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
3 Neither party proposed RCW 26.09.191 restrictions.
7 No. 39060-8-III Pablo v. Chow Hoy
(iii) Each parent’s past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent’s employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.
RCW 26.09.187(3)(a).
Of the seven statutory factors, Chow Hoy concedes that four factors weigh in
favor of Pablo or are neutral. However, she disagrees that factor one and three are neutral
and she disagrees that factor five weighs in favor of Pablo. Pablo argues that because
Chow Hoy failed to assign error to the court’s findings, she cannot now argue they are
unsupported by evidence. However, an appellate court may in its discretion, review
findings to which the appellant fails to properly assign error so long as the appellant has
identified those findings and the nature of challenges to them can be found elsewhere in
the brief. See RAP 10.3(g); Bircumshaw v. State, 194 Wn. App. 176, 380 P.3d 524
(2016). Although Chow Hoy does not assign error to specific findings, her brief
8 No. 39060-8-III Pablo v. Chow Hoy
identifies the nature of her challenges—the court’s application of factors one, three, and
five. We exercise our discretion to address the three statutory factors despite the failure
to specifically assign error to them.
A. Factor One
Chow Hoy argues that although the trial court found factor one to be neutral, the
relative strength, nature, and stability of the child’s relationship with each parent weighs
in her favor. However, she does not assign error to any of the court’s findings of fact.
Unchallenged findings constitute verities on appeal. In re Estate of Jones, 152 Wn.2d 1,
8, 93 P.3d 147 (2004). In its oral ruling, the court found factor one to be neutral. It
stated:
Both parties have developed strong bonds with [K.P.] while also enduring periods of long absences. Although Mr. Pablo may have to travel for work, he and [K.P.] have an incredibly strong, [sic] bond, perhaps due to their mutual interests. Since his birth, Mr. Pablo has taken an active role in parenting [K.P.], putting [K.P.]’s needs above his own.
Likewise, Ms. Chow Hoy and [K.P.] have an incredibly strong bond. She is the parent who has historically had more time with [K.P.] and, like Mr. Pablo, always seems to be looking out for [K.P.]’s best interest.
RP at 371-72. In addition, the court examined the meaning of the word “stability” as
used in RCW 26.09.187(3)(i). “Stability as defined in the Merriam-Webster dictionary is
to be firmly established or not changing or fluctuating.” RP at 368. The court disagreed
with Chow Hoy that Pablo’s absence from K.P. while away at work creates a lack of
9 No. 39060-8-III Pablo v. Chow Hoy
stability in their relationship. Specifically, it found “stability is not synonymous with
availability or consistency. Rather, it refers to the type of relationship the child has with
the parent, not the frequency of contact between the two.” RP at 368-69.
Chow Hoy argues that based on the evidence provided at trial, no reasonable
person could say that this factor does not favor her or that it is a tie. Specifically, she
argues that she spent more time with K.P., took care of his education at the Montessori
school, took care of the majority of his medical needs, and overall, is always available to
parent him. However, because Chow Hoy does not challenge any of the court’s findings,
she is essentially asking this court to reweigh the evidence. “[A]n appellate court does
not reweigh evidence on review.” Richardson v. Dep’t of Lab. & Indus., 6 Wn. App. 2d
896, 908, 432 P.3d 841 (2018).
Based on these unchallenged facts, the court did not abuse its discretion. The
court found that based on the evidence, each parent shared a strong bond with K.P. and
that it could therefore not conclude that either parent has a stronger or more stable bond
with him. Further, it addressed the issue of stability and how it is not synonymous with
availability or consistency, which Chow Hoy does not challenge. In addition, it did note
on the record that this was the factor to be given the most weight, which is required by
statute. See RP at 375 (“the first factor, the one that’s to be weighed most heavily”);
RCW 26.09.187(3)(a) (“Factor (i) shall be given the greatest weight.”). In light of the
10 No. 39060-8-III Pablo v. Chow Hoy
undisputed facts, the trial court’s determination that factor one was neutral toward each
parent was not an abuse of discretion.
B. Factor Three
Next, Chow Hoy argues the trial court erred by finding factor three, relating to
each parent’s past and potential for future performance of parenting functions, to be
neutral. Chow Hoy argues the testimony was overwhelming that she provided the
majority of the past parenting functions, including the medical needs, educational needs,
financial needs, and daily needs of K.P. Other than reciting the evidence, Chow Hoy
does not provide any case law or analysis on how the court abused its discretion in
weighing this factor as neutral.
The court found that based on the evidence, it was “not able to find whether either
parent had provided a greater amount of parenting functions,” and that “[i]t seems they
both provided parenting functions at different levels during different periods of time.”
RP at 373. For example, it found that between 2016 and 2018 Chow Hoy spent most of
her evenings working towards her master’s degree and was also unavailable during the
six months she was deployed in Qatar in 2018. However, Pablo’s employment prevented
him from being available to parent all but two weeks between January 2019 and
September 2019. In addition, “[b]etween November 2019 and May 2020, Mr. Pablo had
limited contact with [K.P].” RP at 373. “Lastly, since September 2021, Ms. Chow Hoy
has been largely unavailable to parent due to her residing in Virginia and only seeing
11 No. 39060-8-III Pablo v. Chow Hoy
[K.P.] in person on Thanksgiving, winter break, spring break, and during trial,” despite
the fact she had “30-plus days of annual leave” that she could use to travel to Spokane to
see him. RP at 373.
The court also considered K.P.’s education, noting that both parents have been
actively involved in vastly different ways. For example, Chow Hoy was instrumental in
supporting K.P. in Montessori school whereas recently Pablo has taken on nearly all of
his educational needs. Pablo was the parent who primarily transported him to and from
daycare dating back as early as the month of his birth.
As far as each person’s ability to provide parenting functions, the court did not
have any concerns for either parent. Both are excellent parents who put K.P.’s needs
above their own. Although Chow Hoy lives across the country, she attends conferences
by phone and with him over his tablet. In addition, Pablo attends school conferences in
person and volunteered at the school for field trips and he speaks with teachers on a
weekly basis. Both parents are focused on K.P.’s “education, extracurricular activities,
healthcare, and his daily needs,” keeping this factor neutral. RP at 374.
Based on these unchallenged facts, the court’s determination of factor three as
neutral was not an abuse of discretion.
12 No. 39060-8-III Pablo v. Chow Hoy
C. Factor Five
Chow Hoy provides two arguments for the fifth factor: first, she argues that the
trial court improperly drew presumptions from the temporary parenting plan and second,
she disagrees with the court’s determination that the factor weighed in favor of Pablo.
In its oral ruling, the court stated: “[a]lthough the temporary order cannot and will
not be used to decide this case or prejudice Ms. Chow Hoy, the court is called upon to
consider [K.P.]’s present environment and potential environment in Virginia.” RP at 375
(emphasis added). The court made clear it did not find this factor for Pablo simply
because of the temporary plan and instead pointed to several relevant facts. The court
noted that K.P. goes to kindergarten, has made numerous friends, attends Muay Thai, and
has both a doctor and dentist in Spokane. The court also explained his family ties in
Spokane. It explained that both of K.P.’s grandparents live in the state and spend a
substantial amount of time with him, spending at least one week per month with them,
and have been significant people in his life since birth. In addition, K.P.’s godparents
live in Spokane and he has family in the Tri-Cities, Moses Lake, Wenatchee, and
Marysville.
Chow Hoy cites to In re Marriage of Combs, 105 Wn. App. 168, 19 P.3d 469
(2001) to support her argument that the trial court improperly drew presumptions from
the temporary plan, however, Combs is distinguishable. In Combs, not only did the
Father assign error to particular findings, but he also challenged the trial court’s use of
13 No. 39060-8-III Pablo v. Chow Hoy
the mother’s performance under the temporary parenting plan as a tie breaker after
finding the other statutory factors neutral. Specifically, the trial court had indicated that
while the father had positive traits, “the mother has been the primary parent . . . and the
children appear to be doing well.” Id. at 172. The Combs court noted that these findings
were vague and did not relate to any of the statutory factors. Id. at 176. The Combs court
concluded that “[t]o the extent the trial court’s finding applies a presumption in favor of
[the mother] on the basis of her status as the temporary residential parent, it clearly was
not based on tenable reasons and was an abuse of discretion.” Id.
Unlike in Combs, the trial court in this case made specific findings that related to
relevant statutory factors. The court found several relevant factors to support its
conclusion that staying in Spokane would be in the best interest of K.P. For example, the
court noted K.P.’s environment in Spokane:
He attends kindergarten here, has made numerous friends here, attends Muay Thai here, and has both a doctor and dentist here. Importantly, both of [K.P.]’s grandparents live in the state and spend a substantial amount of time with him.
RP at 376. The court then compared that environment to his environment in Chow Hoy’s
state, Virginia:
Although [K.P.] may have been enrolled in martial arts in Virginia, he has not attended school there, has not developed deep friendships there, and, most importantly, other than Mr. Weltha, whom [K.P.] has only been
14 No. 39060-8-III Pablo v. Chow Hoy
acquainted with sporadically since 2020, he does not have any family or other significant relationships in Virginia.
RP at 376.
Under RCW 26.09.187(3)(a)(v), the court was required to consider K.P.’s
relationship with family, as well as K.P.’s involvement in school, activities, and
surroundings. Although K.P.’s current environment and family support was a product of
the residential schedule ordered in the temporary plan, the trial court did not simply
presume that Pablo should continue as the primary parent because he had been
performing well so far. We conclude that the court did not ignore RCW 26.09.191(5) and
abuse its discretion by impermissibly drawing presumptions from the temporary
parenting plan.
Next, Chow Hoy argues that nothing codified in statute or case law states that
factor five is to be weighed most heavily following factor one. Chow Hoy misinterprets
the court’s oral ruling. The court stated “[g]iven the first factor, the one that’s to be
weighed most heavily, was found to be neutral, of the other remaining six factors this one
may prove to be the most meaningful.” RP at 375 (emphasis added). The court simply
stated that of all the factors presented this may be the most meaningful in this case but the
court did not state it was weighed most heavily.
Finally, Chow Hoy argues that the court erred in its application of the facts to find
this factor weighed in favor of Pablo. Again, without assigning error to any of the factual
15 No. 39060-8-III Pablo v. Chow Hoy
findings, the court did not abuse its discretion in weighing this factor in favor of Pablo.
While the court did find this factor meaningful, it did not improperly weigh it when
compared to others. Most factors were neutral. The facts that the trial court found
persuasive related to the best interest of K.P. which is the overarching goal of the factors
outlined in RCW 26.09.187(3)(a). See In re Parentage of C.M.F., 179 Wn.2d 411, 314
P.3d 1109 (2013) (noting that “[a] parenting plan’s overriding purpose is to do what is in
the best interest of the child”); RCW 26.09.002 (“[T]he best interests of the child shall be
the standard by which the court determines and allocates the parties’ parental
responsibilities.”). The court ultimately found that K.P. is thriving in his environment in
Spokane and has limited ties to Virginia. We conclude that the court did not abuse its
discretion when it found this factor weighed in favor of Pablo.
Affirmed.
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.
_________________________________ Staab, A.C.J. WE CONCUR:
_________________________________ _________________________________ Fearing, J. Pennell, J.