Dunn v. Palermo

• Decision Date: 07 April 1975
• Citation: 522 S.W.2d 679
• Parties: Winfield DUNN et al., Appellants, v. Rosary T. PALERMO, Appellee.
• Court: Tennessee Supreme Court

Page 679

522 S.W.2d 679

Winfield DUNN et al., Appellants, v.Rosary T. PALERMO, Appellee.

Supreme Court of Tennessee.

April 7, 1975.

R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, for appellants.

Martha Craig Daughtrey, Jayne Ann Woods, Nashville, for appellee.

OPINION

HENRY, Justice.

This action presents the question of whether it is mandatory that a married woman assume the name of her husband.

I.

Rosary T. (Rose) Palermo is a Nashville lawyer.On 29 September 1973she married Denty Cheatham, also a Nashville lawyer.She has continued to use and enjoy her maiden name, Palermo, professionally, socially and for all purposes.

Tennessee has a state-wide, compulsory Registration Law.¹Subsequent to her marriage, she lodged with the Registrar a change of address form listing her name as Palermo.She was advised that she was required to register anew under the surname of her husband, or have her name purged from the registration records.The Registrar was prompted by Sec. 2--206, T.C.A. which reads in pertinent part as follows:

2--206.Acts purging registration--Notice.--The registration of a person shall be purged:

(a) * * *

(b) Ninety (90) days after he changes his name by marriage or otherwise;

Upon her refusal to so register, her name was purged from the registration list.Thus this action, wherein appellee seeks a declaratory judgment declaring that the defendants' interpretation of Sec. 2--206, is erroneous, or in the alternative that this statute be declared violative of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and of the Nineteenth Amendment to the Constitution of the United States.

The Chancellor held: (1) that under the common law a married woman had the right to assume her husband's surname but she acquired his name by repute and not by operation of law; (2) that Sec. 2--206 does not operate to change the name of a woman at marriage to that of her husband; and, (3) that the action of the Registrar in purging the plaintiff's name was error and based upon an erroneous interpretation of the law.

Defendants have appealed, and insist that the statute dictates that a woman automatically take her husband's name upon marriage and that this was a requirement of the common law.

The conclusions we reach necessarily involve a consideration of the statutory laws of the state, the common law and the relevance of custom, usage and tradition.

II.

Tennessee has no statutory enactment providing In haec verba that a woman automatically assumes her husband's surname upon the event of marriage.

The statute under consideration, standing alone, does not mandate a change of name by marriage.It merely recognizes the prevalence of the virtually universal custom under which a woman normally adopts the surname of her husband.Moreover, it is equally susceptible of the construction that when either party to the civil contract of marriage elects to use the name of the other, the registration will be changed.

Sec. 59--708(d), T.C.A., relating to drivers' licenses, provides for notification of the Department of Safety'when the name of a licensee is changed by marriage' of the 'former and new names.'Again this statute merely takes cognizance of custom and does not mandate a change.

Change of name is authorized in adoption proceedings.(Sec. 36--101 et seq, T.C.A.)

The lackadaisical policy or relative insignificance of a change of name under Tennessee Law is best demonstrated by reference to Sec. 23--801, T.C.A., et seq, governing such changes.No standards, guidelines or criteria are established.All that is required is that a live person file a sworn application in the proper court of the county of his residence 'giving his reasons for desiring the change.'There is no requirement that the reasons be good and sufficient; just that they be given.We assume that a married woman not enamoured with the custom, could get her name changed by 'giving his reasons.'

Finally, in divorce cases, courts may restore the wife's maiden name.

We proceed next to a discussion of the common law.

III.

A name is a word or phrase that constitutes the distinctive designation of a person or thing.Webster's New Collegiate Dictionary (8th ed. 1974).

A person's first name is generally known as his given, Christian or proper name and is awarded at, or soon after birth.His surname, patronymic or family name is that which is derived from the common name of his parents, or is borne by him in common with other members of his family.

The history of the use of names, in England, the country that has had the greatest influence upon the customs of the United States, and the source of our common law, is of interest and relevance.²

Until about the time of the Norman Conquest, during Eleventh Century England, there was no such thing as a surname or family name, and each person was identified only by his Christian or given name.This led to substantial confusion resulting from the paucity of given names.³The custom of using surnames developed slowly with only sporadic use of such names until the practice became prevalent about the beginning of the fourteenth century.A man was designated, in addition to his Christian name, in the great majority of cases, by the name of his estate, the place he was born, where he lived, or whence he had come, or by his calling as John the Smith, or William the Taylor, in time abridged to John Smith and William Taylor.Sometimes the occupation became the family name.A son would be distinguished from his father by calling him John's-son or William's-son.The Normans added 'Fitz' to the father's Christian name to designate the son, as Fitzgerald or Fitzhugh.Among the Celts of Ireland and Scotland, where each clan bore a surname, 'Mac' was added to distinguish the son and 'O' to distinguish the grandson, resulting in MacDonald and O'Donnell.Men also adopted surnames based upon physical characteristics (Long, Short), colors (Brown, Black), or moral attributes (Wiley, Moody, Wise), or of birds, animals or plants (Martin, Fox, Rose).This is a brief synopsis of the interesting developments of surnames.By the fourth year of the reign of Edward IV (1465), statutes were adopted requiring the use of surnames.

Apparently, surnames were adopted and abandoned at will, and it was not unusual for one person to have several surnames in the course of a lifetime.No requirement or custom demanded that a woman adopt the surname of her husband, and early records showed that husband and wife often were known by different surnames.⁴

The family group did not necessarily use the same surnames, and men sometimes adopted the surnames of their wives.⁵Property sometimes entered into the picture, and it was not uncommon for children to adopt the mother's name where she owned the most property or had the largest estate.⁶

The common law tended to place more stress on the baptismal than the surname.Coke instructs us:

And regularly it is requisite . . . that speciall heed bee taken to the name of baptism for that a man cannot have two names of baptism as he may have divers surnames.⁷

In Button v. Wrightman, Poph. 56(1682), it was said:

The law is not so precise in the case of surnames, but for the Christian name, this ought always to be perfect.⁸

Up to this juncture we have been primarily concerned with historical developments.We now turn to legal authorities.

The Tennessee Constitution of 1796, (Art. 10, Sec. 2) provided:

All laws and ordinances now in force and use in this Territory, not inconsistent with this constitution, shall continue to be in force and use in this State, until they shall expire, be altered, or repealed by the legislature.

Subsequent constitutions have contained substantially the same provisions.⁹

We adopted the common law:

(A)s it stood at (1776) and before the separation of the colonies . . . (it) being derived from North Carolina, out of which state the State of Tennessee was carved.The Acts of North Carolina, 1715, c. 31, andActs of North Carolina, 1778, c. 5, preserved the common law, while Session Act 1789, c. 3 provided for its continuance in the State of Tennessee.(Parenthetical date supplied).

Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249(1965);Smith v. State, 215 Tenn. 314, 385 S.W.2d 748(1965).

Thus it is that Tennessee, through North Carolina, adopted the common law of England as it existed in 1776.Case law research is next to impossible and text treatment in a relatively minor area of the common law is rendered extremely difficult by virtue of the antiquity of the cases.We can only turn to earlier English works and to the decisions from other jurisdictions.

Volume 12, Encyclopedia of the Laws of England, 53 (1898--London), under the heading, Surname, reads in pertinent part:

A person usually bears the surname of his father, but if he so pleases he may change it for another name, and it is not necessary that he should take any formal step to effectuate this (Davies v. Lowndes, 1835, J. Bing. N.C. 618) unless, indeed he changes his name in compliance with the injunction of a name and arms clause . . .

Except where the name to be assumed is prescribed by a name and arms clause, a person is at liberty to choose and bear any name he likes.

A woman on her marriage takes her husband's name, and she retains it although the marriage may have been dissolved by divorce unless she has so far obtained another name by Repute as to obliterate the original name.(Emphasis added).(Fendall v. Goldsmid, 1877, 2 P.D. 263).

The acquisition of a surname by repute figures very prominently in a change of name under English law.

The case of Cowley v. Cowley, (1901)A.C. 450, was heard before the House of Lords.Lady Cowley divorced Lord Cowley and married a commoner.Lord Cowley sued to restrain her from bearing his name and arms.During the course of the deliberations, Lord Lindley said:

Speaking generally, the law of this...