CONSTANCIA C.TOWNT1NO, PETITIONER, VS. COURT OF APPEALS AND CONSUELO DAVID, RESPONDENTS.

Tolentino versus Court of Appeals

The Case

This is a petition for review on certiorari brought by Constancia Tolentino against the Court of Appeals and Consuelo David. Constancia is the present legal wife of Arturo Tolentino. Consuelo is his former wife, whose marriage to him was dissolved by an absolute divorce granted during the Japanese occupation. Constancia went to court to stop Consuelo, by injunction, from continuing to use the surname Tolentino. The case matters because it asks whether a woman legally divorced from her husband may be enjoined by the husband's present wife from using his surname — a question Philippine law does not expressly answer, since our law provides no divorce and therefore no rule on the surnames of divorced wives.

Procedural History

Constancia filed a complaint with the then Court of First Instance of Quezon City against Consuelo, praying for an injunction to stop her from using the surname Tolentino. She also claimed damages, which she later waived, and applied for a writ of preliminary injunction. Consuelo answered, admitting that she had been using and continued to use the surname Tolentino. After hearing both parties, the trial court granted the writ of preliminary injunction. Consuelo then obtained leave to file a third party complaint against her former husband, Arturo Tolentino, who answered. After the hearings, the trial court rendered judgment for Constancia, confirming the preliminary injunction and making it permanent and perpetual, restraining Consuelo and all persons acting under her from using the surname Tolentino in any manner. The third party complaint was dismissed.

Consuelo appealed to the Court of Appeals, raising among others the prescription of Constancia's cause of action and the absence of any monopolistic proprietary right of Constancia over the surname Tolentino. The Court of Appeals reversed the trial court and dismissed the complaint. Constancia's motion for reconsideration was denied. Hence this petition for review on certiorari before the Supreme Court.

Facts

Constancia is the present legal wife of Arturo Tolentino; they were married on April 21, 1945 in Manila, and their union produced three children. Consuelo David was legally married to Arturo Tolentino on February 8, 1931, and their marriage likewise produced children. That marriage was dissolved on September 15, 1943 by a decree of absolute divorce granted by the Court of First Instance of Manila on the ground of desertion and abandonment by the wife, the court finding that Arturo had been abandoned by Consuelo for at least three continuous years.

After the divorce, Arturo married a certain Pilar Adorable, who died soon after their marriage. Arturo then married Constancia on April 21, 1945. Consuelo, for her part, continued using the surname Tolentino after the divorce and up to the time the complaint was filed.

In his answer to the third party complaint, Arturo admitted that Consuelo's use of the surname Tolentino was with his consent and that of his family. Constancia came to know that Consuelo was still using the surname in 1951, but she brought her action only on November 23, 1971, with only verbal demands in between and an action to reconstitute the divorce case.

Issues

• Whether or not the petitioner's cause of action has already prescribed.
• Whether or not the petitioner can exclude by injunction Consuelo David from using the surname of her former husband from whom she was divorced.

Applicable Provisions

Article 1150 of the Civil Code provides:

The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought.

This fixes the starting point of the prescriptive period at the moment the action may legally be brought, which the Court uses to count against the petitioner.

Article 1149 of the Civil Code, as stated in the decision, fixes the period:

All actions, unless an exception is provided, have a prescriptive period. Unless the law makes an action imprescriptible, it is subject to bar by prescription and the period of prescription is five (5) years from the time the right of action accrues when no other period is prescribed by law.

This supplies the period that bars the petitioner's action, no special law having made it imprescriptible.

Article 370 of the Civil Code, as quoted in Senator Tolentino's commentary cited by the Court, provides:

The wife cannot claim an exclusive right to use the husband's surname. She cannot be prevented from using it; but neither can she restrain others from using it.

This defeats the petitioner's claim of an exclusive right over the surname Tolentino.

Ruling

On the first issue, the Court held that the petitioner's cause of action has prescribed. Her claim that the action is imprescriptible is without merit and contradicts her own position that every use of the surname is a new wrong; the use of a surname for a purpose not criminal in nature is certainly not a crime. All actions, unless an exception is provided, have a prescriptive period, and no special law makes this action imprescriptible. The mere fact that the supposed violation is continuous does not change the principle that the moment the breach of right or duty occurs, the right of action accrues and the action may from that moment be legally instituted. Whether the period is five years or four years, the action has long prescribed, counted from the marriage in 1945, from the effectivity of the Civil Code in 1950, or from 1951 when the petitioner learned of the use. It is the legal possibility of bringing the action that determines the starting point of prescription. The petitioner should have filed her complaint at once when it became evident that Consuelo would not accede to her demands, instead of waiting for twenty years.

On the principal issue, the Court held that a divorced woman may continue using the surname of her former husband, and that the petitioner cannot enjoin her. Philippine law is silent on the matter because we have no provisions for divorce. Article 371 does not apply, because it speaks of annulment, while this case involves an absolute divorce where there is a severance of valid marriage ties; the effect of divorce is more akin to the death of the spouse, where the deceased woman continues to be referred to as the Mrs. of her husband even if the latter has remarried. There is no usurpation of the petitioner's name, for usurpation implies injury to the owner of the name through the possibility of confusion of identity, and none of its elements exists here. Consuelo never represented herself as Mrs. Arturo Tolentino but simply as Mrs. Consuelo David-Tolentino, and she has legitimate children who have every right to use the surname Tolentino. The petitioner has shown no legal injury, since she can use her husband's surname and is fully protected should the respondent use it for illegal purposes. In the earlier case of Silva versus Peralta, what was enjoined was not the mere use of the surname but the representation that the defendant was the wife of another, a usurpation of status absent here. Considering the respondent's age and the serious prejudice to her of having to reconstitute documents and alter legal transactions, the Court found it just and equitable to leave things as they are, there being no actual legal injury to the petitioner save a deep hurt to her feelings, which is not a basis for injunctive relief.

Doctrine

First, every action has a prescriptive period unless the law makes it imprescriptible; where no special period is fixed, the period is five years from the time the right of action accrues, counted from the day the action may be legally brought. A continuous wrong does not postpone the accrual of the cause of action.

Second, a wife has no exclusive right to the use of her husband's surname; she cannot be prevented from using it, but neither can she restrain others from using it. A divorced wife may continue using the surname of her former husband, the effect of absolute divorce being akin to the death of the spouse rather than to annulment.

Third, the usurpation of a name requires actual unauthorized use of another's name to designate personality or identify a person, with injury to the owner through the possibility of confusion of identity; absent these elements, no injunction lies.

Disposition

The petition was dismissed for lack of merit, the decision of the Court of Appeals was affirmed, and the writs of preliminary and mandatory injunction issued by the trial court were set aside.

Remember This

Memorize the line that a wife cannot claim an exclusive right to use the husband's surname — she cannot be prevented from using it, but neither can she restrain others from using it. Examiners use this case on the prescriptive period for actions without a special period, and on the absence of usurpation where a divorced wife uses her former husband's surname without passing herself off as his present wife.