Burns

INTRODUCTION

This appeal arises from a dispute between the heirs of Terence Fitzgerald and the heirs of his wife, Barbara Fitzgerald, regarding the characterization of shares of stock in a company formed during the course of their marriage. Barbara’s heirs asserted the stock was community property and filed a petition to recover assets, including, among others, a one-half interest in the stock. Following a bifurcated trial on stipulated issues concerning the characterization of the stock, the trial court issued a statement of decision and order characterizing the stock as community property. Terence’s son, Patrick Fitzgerald (Patrick), appeals from the order and asserts, as he did in the trial court, that the stock was Terence’s separate property based on a Premarital Agreement (PMA) executed by Terence and Barbara. In addition, Patrick asserts the trial court erred by denying a motion in limine and allowing Barbara’s siblings and heirs, Margaret Rasmussen and Terrance Burns (Terry) (together, Respondents),1 to change theories after the close of discovery to assert the stock was not covered by the PMA. Respondents contend the trial court’s order is not appealable because it is…