Tolentino vs. Court of Appeals

A divorced wife may continue using her former husband's surname, and the present wife cannot enjoin such use by injunction, where there is no usurpation of identity, no impersonation, and no showing of legal injury to the present wife; and the action to enjoin such use is subject to prescription under the Civil Code.

Constancia C. Tolentino is the present legal wife of Arturo Tolentino, having married him on April 21, 1945 in Manila, with whom she has three children. Consuelo David was previously married to Arturo Tolentino on February 8, 1931, a marriage that produced children and was dissolved by a decree of absolute divorce granted on September 15, 1943 by the Court of First Instance of Manila during the Japanese occupation, on the ground of desertion and abandonment. After the divorce, Arturo Tolentino married Pilar Adorable, who died soon after, and then married Constancia. Consuelo David continued using the surname "Tolentino" after the divorce and never legally remarried. The Civil Code of the Philippines, which took effect on August 30, 1950, contains no provision governing the use of surnames by divorced wives, as Philippine law does not provide for divorce.

Constancia C. Tolentino is the present legal wife of Arturo Tolentino, their marriage having been celebrated on April 21, 1945 in Manila. The union produced three children. Consuelo David was legally married to Arturo Tolentino on February 8, 1931, a marriage that likewise produced children. That marriage was dissolved and terminated pursuant to the law during the Japanese occupation on September 15, 1943, by a decree of absolute divorce granted by the Court of First Instance of Manila in Divorce Case No. R-619, entitled "Arturo Tolentino vs. Consuelo David," on the ground of desertion and abandonment by the wife. The trial court granted the divorce on its finding that Arturo Tolentino was abandoned by Consuelo David for at least three continuous years.

Thereafter, Arturo Tolentino married a certain Pilar Adorable, who died soon after their marriage. Tolentino subsequently married Constancia on April 21, 1945. Consuelo David, on the other hand, continued using the surname Tolentino after the divorce and up to the time of the filing of the complaint. The third party defendant, Arturo Tolentino, in his answer, admitted that the use of the surname Tolentino by the private respondent was with his and his family's (brothers and sisters) consent.

On November 23, 1971, petitioner filed a complaint with the then Court of First Instance of Quezon City against Consuelo David for the purpose of stopping and enjoining her by injunction from using the surname Tolentino. The complaint also contained a claim for damages, which the petitioner waived. An application for a writ of preliminary injunction was filed as well. On January 13, 1972, respondent Consuelo David filed her answer admitting she had been using and continues to use the surname Tolentino. The application for the writ was heard with both parties presenting evidence. On January 18, 1972, the trial court issued an order granting the writ of preliminary injunction, with the actual writ issued on January 20, 1972. On February 2, 1972, respondent Consuelo filed a motion for leave to file a third party complaint against her former husband, which was granted on March 18, 1972. Third party defendant Arturo Tolentino filed his answer on April 19, 1972.

After the hearings, the trial court rendered a decision in favor of the petitioner, making the preliminary injunction permanent and perpetual. The private respondent appealed to the Court of Appeals, raising several issues including the prescription of the petitioner's cause of action and the absence of a monopolistic proprietary right of the petitioner over the use of the surname Tolentino. On June 25, 1975, the Court of Appeals reversed the trial court's decision and dismissed the complaint. The petitioner's motion for reconsideration was denied on August 29, 1975.

• Imprescriptibility of Cause of Action: Petitioner contended that her cause of action is imprescriptible, arguing that the use by respondent Consuelo David of the surname Tolentino is a continuing actionable wrong and that every use of the surname constitutes a new crime.
• Exclusive Right to Husband's Surname: Petitioner claimed that allowing the divorced wife to continue using the surname Tolentino would contradict Articles 370 and 371 of the Civil Code, which she interpreted as granting her the exclusive right to use her husband's surname.
• Usurpation of Name: Petitioner argued that the respondent's continued use of the surname Tolentino constituted usurpation of her name and surname, injuring her rights as the present legal wife.

• Prescription of Cause of Action: Respondent argued that the petitioner's cause of action had already prescribed, the complaint having been filed only in 1971 despite knowledge of the use of the surname as early as 1951.
• No Exclusive Right to Surname: Respondent maintained that the petitioner has no monopolistic proprietary right over the use of the surname Tolentino, citing Senator Tolentino's own commentary that a wife cannot claim an exclusive right to use the husband's surname and cannot restrain others from using it.
• Consent of Former Husband: Respondent established that her use of the surname Tolentino was with the consent of Arturo Tolentino and his family, and that she had entered into contracts, acquired properties, and entered into legal relations using that surname, such that an injunction would cause serious dislocation.

• Prescription: Whether the petitioner's cause of action has already prescribed.
• Injunction Against Use of Surname: Whether the petitioner can exclude by injunction Consuelo David from using the surname of her former husband from whom she was divorced.

• Prescription: Yes. The action had long prescribed, whether the cause accrued on April 21, 1945, on August 30, 1950 when the Civil Code took effect, or in 1951 when petitioner learned of respondent's continued use of the surname. The complaint was filed only on November 23, 1971.
• Injunction Against Use of Surname: No. The use of the surname Tolentino by the divorced wife does not impinge on the rights of the petitioner. None of the elements of usurpation of a name exists, and the petitioner failed to show any legal injury or deprivation of legal rights.

• Prescription: The petitioner's contention that her cause of action is imprescriptible was rejected. The use of a surname by a divorced wife for a purpose not criminal in nature is not a crime, and the rule on prescription in civil cases applies. Under Article 1150 of the Civil Code, the time for prescription is counted from the day the action may be brought. Unless the law makes an action imprescriptible, it is subject to bar by prescription, with a default period of five years under Article 1149 when no other period is prescribed. No special law provides for imprescriptibility in this case. The mere fact that the violation may be continuous does not change the principle that the right of action accrues the moment the breach occurs. The petitioner should have filed her complaint immediately upon learning that the respondent would not accede to her demands, rather than waiting twenty years. The legal possibility of bringing the action determines the starting point for computation of the prescriptive period.

• Injunction Against Use of Surname: Philippine law is silent on the use of surnames by divorced wives, as there are no provisions for divorce in the present legal framework. Article 371 of the Civil Code, which the petitioner invoked, speaks of annulment, not absolute divorce; the effect of divorce is more akin to the death of a spouse, where the deceased woman continues to be referred to as the wife of her husband even if the latter has remarried. Senator Tolentino himself, in his commentary on Article 370, stated that a wife cannot claim an exclusive right to use the husband's surname and cannot restrain others from using it. The elements of usurpation of a name—actual use of another's name, unauthorized use, and use to designate personality or identity—were not present. The respondent never represented herself as Mrs. Arturo Tolentino but simply as Mrs. Consuelo David-Tolentino. She has legitimate children who have the right to use the surname Tolentino, and she could not be compelled to use a prefix or surname different from her children's. The petitioner failed to show any legal injury, as she can use her husband's surname and be fully protected in case the respondent uses it for illegal purposes. The case of Silva vs. Peralta was distinguished, as there the injunction was based on the defendant's representation that she was the wife of Saturnino Silva—a usurpation of the wife's status absent here. Considering the respondent's age, her established legal relations using the surname, and the absence of actual legal injury to the petitioner, the Court found it just and equitable to leave things as they are.

• Prescription of Actions — Unless the law makes an action imprescriptible, it is subject to bar by prescription. The default prescriptive period is five years when no other period is prescribed by law (Civil Code, Art. 1149). The time for prescription is counted from the day the action may be brought (Civil Code, Art. 1150). The continuous nature of a violation does not alter the principle that the right of action accrues the moment the breach of right or duty occurs. Applied here, the petitioner's action to enjoin the respondent from using the surname Tolentino had long prescribed, the complaint having been filed twenty years after the cause of action accrued.

• Usurpation of Name — Usurpation of a name implies some injury to the interests of the owner of the name and consists in the possibility of confusion of identity between the owner and the usurper. The elements are: (1) actual use of another's name by the defendant; (2) the use is unauthorized; and (3) the use of another's name is to designate personality or identity a person. None of these elements existed in this case, as the respondent used the surname with the former husband's consent and never impersonated the petitioner.

• Right to Use Husband's Surname — A wife cannot claim an exclusive right to use her husband's surname. She cannot be prevented from using it, but neither can she restrain others from using it. This principle, drawn from Senator Tolentino's commentary on Article 370 of the Civil Code, was applied to hold that the petitioner could not enjoin the divorced wife from using the surname Tolentino.

• "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 passage, quoting Senator Tolentino's commentary on Article 370 of the Civil Code, articulates the controlling principle that a wife has no exclusive proprietary right over her husband's surname and cannot enjoin others from using it.

• "The usurpation of name implies some injury to the interests of the owner of the name. It consists in the possibility of confusion of Identity ... between the owner and the usurper." — This passage defines the doctrine of usurpation of a name and its elements, which the Court found absent in the case, distinguishing it from Silva vs. Peralta where the defendant usurped the wife's status.

• "where the plaintiff fails to go to the Court within the prescriptive period, he loses his cause, but not because the defendant had acquired ownership by adverse possession over his name but because the plaintiffs cause of action had lapsed thru the statute of limitations." — This quotation from the Court of Appeals, adopted by the Supreme Court, explains the consequence of failing to file within the prescriptive period in actions involving the use of a surname.

• Soriano vs. Sternberg, 41 Phil. 210 — Cited for the principle that the moment a breach of right or duty occurs, the right of action accrues and the action can be legally instituted from that point, regardless of whether the violation is continuous.

• Silva vs. Peralta, 110 Phil. 57 — Distinguished. In that case, the injunction was based not on mere use of a surname but on the defendant's representation that she was the wife of Saturnino Silva, constituting usurpation of the wife's status—an element absent in the present case.

• Espanol vs. Phil. Veterans Administration, 137 SCRA 314 — Cited for the principle that the legal possibility of bringing the action determines the starting point for computation of the prescriptive period.

• Article 1149, Civil Code of the Philippines — Provides the default prescriptive period of five years for actions when no other period is prescribed by law. Applied to determine that the petitioner's action, if not otherwise prescribed under a different period, was nonetheless time-barred.

• Article 1150, Civil Code of the Philippines — Provides that the time for prescription for all kinds of actions, when there is no special provision ordaining otherwise, shall be counted from the day they may be brought. Applied to establish the starting point for the prescriptive period.

• Article 370, Civil Code of the Philippines — Governs the use of the husband's surname by the wife. Interpreted in light of Senator Tolentino's commentary to mean that the wife cannot claim an exclusive right to the husband's surname and cannot restrain others from using it.

• Article 371, Civil Code of the Philippines — Governs the use of surnames in case of annulment of marriage. Held inapplicable because it speaks of annulment, not absolute divorce; the effect of divorce is more akin to the death of a spouse than to annulment, where it is as if there had been no marriage at all.

Fernan (Chairman), Feliciano, Bidin, and Cortes, JJ., concurred.