Givan, J.
This is a matter of the adoption of two minor children whose natural mother, Sydney K. Kelly, is now married to one Charles Ray Kelly, who seeks to adopt her natural children. The natural father of the children is the appellant, Nathan H. Reynard, who appeared in the trial court and objected to the granting of the adoption. It was the decision of the Trial Court that the natural father had deserted and abandoned the minor children and had failed to pay support for them for a period of one year immediately prior to the filing of the petition and therefore, his consent was unnecessary to the adoption.
The Court further found that it was in the best interest of the children that the adoption be granted.
The appellant, who is the natural father of the children, assigns as error in this Court the overruling of his motion for a new trial contending that the Trial Court’s decision is not sustained by sufficient evidence and is contrary to law. It is appellant’s contention that the evidence shows that he did not, in fact, abandon the children within the meaning of the statute which would authorize the Court to grant the adoption without his consent.
[634] An examination of the evidence shows that the appellant is a fighter pilot in the United States Air Force now stationed in Vietnam. He was formerly married to appellee, Sydney K. Kelly, who, after divorcing the appellant, married Charles Ray Kelly, who is also an appellee. At the time of the divorce the natural mother obtained the custody of the children, and the appellant was ordered to pay support for the children. This he did until June of 1965, which was two months after the marriage of the mother to Charles Ray Kelly.
Following the remarriage of the mother, difficulties arose concerning visitation with the children. This difficulty was aggravated at least in part by reason of the appellant’s military duties which prevented visitation on a regularly scheduled basis. The appellant testified that he had, during this period of time, employed seven different attorneys attempting to arrange suitable visitation with his children but had never been able to accomplish this.
During the entire year of 1966, the appellant was on duty in Vietnam and Thailand, during which time he could not have visited with his children under any circumstances.
During the period of time following June of 1965, until the present the appellant had without benefit of a modification order taken it upon himself to refuse to make regular support payments to the extent that at the time of the hearing in the trial court in this cause he was in excess of $5,000.00 in arrears.
In the summer of 1966, the appellant made three $25.00 payments at a time when his monthly income was approximately $1330.00.
In March or April of 1967, immediately upon appellant’s return from Vietnam, he sent a $1500.00 Cashier’s check to his attorney for presentation to his former wife as a partial payment of back support. However, this check was refused by his former wife and returned to the appellant.
[635] Charles Ray Kelly had filed his petition for adoption on the 24th day of January, 1967. There is also evidence in the record that there had been a change for the better in the children after their mother had married Mr. Kelly. Mr. Kelly himself testified to his love for the children and an interest in them.
The appellant testified that he had remarried, and that he was returning overseas to continue his tour of duty.
There was evidence in the record that the appellant had great difficulty in attempting to visit with his children and it would appear very little cooperation except from his former wife’s parents, who appeared to remain on friendly terms with him and aided him somewhat in maintaining a small degree of contact with his children.
There is evidence in the record that the appellant suffered a nervous breakdown during this period of time, and that he himself ruled out visitation on occasion because of his emotional instability and that he was fearful he would upset the children too much by a display of emotion in their presence.
The question before this Court is whether or not the decision of the Trial Court was supported by the evidence and is in keeping with the statute. The statute in question reads as follows:
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Givan, J.
This is a matter of the adoption of two minor children whose natural mother, Sydney K. Kelly, is now married to one Charles Ray Kelly, who seeks to adopt her natural children. The natural father of the children is the appellant, Nathan H. Reynard, who appeared in the trial court and objected to the granting of the adoption. It was the decision of the Trial Court that the natural father had deserted and abandoned the minor children and had failed to pay support for them for a period of one year immediately prior to the filing of the petition and therefore, his consent was unnecessary to the adoption.
The Court further found that it was in the best interest of the children that the adoption be granted.
The appellant, who is the natural father of the children, assigns as error in this Court the overruling of his motion for a new trial contending that the Trial Court’s decision is not sustained by sufficient evidence and is contrary to law. It is appellant’s contention that the evidence shows that he did not, in fact, abandon the children within the meaning of the statute which would authorize the Court to grant the adoption without his consent.
[634] An examination of the evidence shows that the appellant is a fighter pilot in the United States Air Force now stationed in Vietnam. He was formerly married to appellee, Sydney K. Kelly, who, after divorcing the appellant, married Charles Ray Kelly, who is also an appellee. At the time of the divorce the natural mother obtained the custody of the children, and the appellant was ordered to pay support for the children. This he did until June of 1965, which was two months after the marriage of the mother to Charles Ray Kelly.
Following the remarriage of the mother, difficulties arose concerning visitation with the children. This difficulty was aggravated at least in part by reason of the appellant’s military duties which prevented visitation on a regularly scheduled basis. The appellant testified that he had, during this period of time, employed seven different attorneys attempting to arrange suitable visitation with his children but had never been able to accomplish this.
During the entire year of 1966, the appellant was on duty in Vietnam and Thailand, during which time he could not have visited with his children under any circumstances.
During the period of time following June of 1965, until the present the appellant had without benefit of a modification order taken it upon himself to refuse to make regular support payments to the extent that at the time of the hearing in the trial court in this cause he was in excess of $5,000.00 in arrears.
In the summer of 1966, the appellant made three $25.00 payments at a time when his monthly income was approximately $1330.00.
In March or April of 1967, immediately upon appellant’s return from Vietnam, he sent a $1500.00 Cashier’s check to his attorney for presentation to his former wife as a partial payment of back support. However, this check was refused by his former wife and returned to the appellant.
[635] Charles Ray Kelly had filed his petition for adoption on the 24th day of January, 1967. There is also evidence in the record that there had been a change for the better in the children after their mother had married Mr. Kelly. Mr. Kelly himself testified to his love for the children and an interest in them.
The appellant testified that he had remarried, and that he was returning overseas to continue his tour of duty.
There was evidence in the record that the appellant had great difficulty in attempting to visit with his children and it would appear very little cooperation except from his former wife’s parents, who appeared to remain on friendly terms with him and aided him somewhat in maintaining a small degree of contact with his children.
There is evidence in the record that the appellant suffered a nervous breakdown during this period of time, and that he himself ruled out visitation on occasion because of his emotional instability and that he was fearful he would upset the children too much by a display of emotion in their presence.
The question before this Court is whether or not the decision of the Trial Court was supported by the evidence and is in keeping with the statute. The statute in question reads as follows:
“If such child have parent or parents living, he, she or they shall consent in writing to such adoption. The minority of any parent shall not in or of itself be a bar to such consent: Provided, however, That if either parent be a minor, consent of such parent must be accompanied by the .written approval of the investigating agency aforesaid if any there be and if none, of the state department of public welfare. Such consent of parent or parents may be dispensed with if such child is adjudged to have been abandoned or deserted for six (6) months or more immediately preceding the date of the filing of the petition. If it appears by indorsement on the petition and by the oath or affirmation of two (2) disinterested persons that such parent or parents or both [636] are nonresidents or that their residence after diligent inquiry is unknown, then such parent or parents shall be notified of the pendency of the action by publication as provided by law in civil cases. If the parent or parents have been legally deprived of their parental rights over such child for reasons other than economic, the written consent of such parent or parents shall not be necessary to such adoption and no notice of the pendency of such adoption proceedings to such parent or parents shall be necessary: Provided, however, That notice of the pendency of such adoption proceedings shall, in such case, be given to such agency or county department of public welfare of which such child may be a ward. In every case where such child shall have been born out of wedlock consent of the mother of such child shall be deemed sufficient, except that where the paternity of such child has been established by lav/ and the father is adequately supporting such child, or where for any reason in the discretion of the court it is deemed advisable that he be heard, he shall have such notice as to the court seems necessary and the opportunity to file his objection if any, and oppose such adoption, which objection shall be considered and determined by the court. If such child be fourteen (14) years of age or over, his consent shall be deemed necessary before adoption. In all cases where consent of the parent or parents is required such consent shall be signed in the presence of a duly authorized agent of the state department of public welfare or of such investigating agency and so attested by such agent; or by notary public: Provided, however,That such attestation shall not be necessary to the consents signed before the taking effect of this act [§§ 3-115 — 3-125]. Such state department is hereby authorized to furnish to clerk of courts as aforesaid prescribed forms for use by parents or other persons when giving consent. Copies of such consent when same have been signed shall be filed with the investigating agency aforesaid and with the clerk of the court in which the petition for adoption is pending. Such court may cause notice of hearing and opportunity to file objection to be given to the known kindred of the child and any other person or persons deemed entitled to such notice before granting such petition. In all oases where the father of any child or children has failed to pay any support money for a period of one (1) year immediately prior to. the filing of adoption proceedings for the adoption of his child, or children, the court may in its discretion not require the filing of a consent of the father [637] in such instances. [Acts of 1941, ch. 146, § 6, p. 438; 1943, ch. 40, § 5, p. 89.]” Burns’ Ind. Stat. Ann. Sec. 3-120.
The above statute has been interpreted by this Court as follows:
Admittedly, there can be no adoption in the absence of consent, unless the ultimate fact of abandonment or desertion is found to exist. The issue with which we are concerned involves the criterion or evidentiary facts necessary to support the ultimate fact of such abandonment or desertion. In determining the elements or criterion of the words ‘abandoned or deserted’; as used in our adoption statute, we look first to the language and purpose of the statute. (Here the Court cited the statute.)
“Significantly our adoption statute omits the use of the word ‘wilful’; as characterizing the abandonment or desertion. In contrast, the Ohio statute uses the term ‘wilfully abandon’ and, in construing that statute, the probate, court of that state stated with reason that ‘ . . . The word “wilfully” as used in the statute has a definite meaning which requires that neglect of the parents must be intentional. Without the word being used the neglect of duty could be caused by carelessness and neglect and, therefore, be unintentional. . . .’ In re Adoption of Gates (1948), 84 Ohio App. 269, 270, 85 N.E.2d 597, 598. Therefore, looking to the language of our statute, we conclude that the careless and negligent failure to perform the duties of parenthood is a significant element of the offense of abandonment or desertion, which neglect is to be considered regardless of any actual ‘intention’ or ‘settled purpose’ by the parent to relinquish the proprietary claim of the parent to his child.” Emmons v. Dinelli (1956), 235 Ind. 249, 259, 133 N.E.2d 56.
The fact that appellant had made some token payments prior to the filing of the petition for adoption and had subsequent to the filing of the petition for adoption tendered some $1500.00 on a $5,000.00 arrearage does not, in our opinion, comply with the meaning of the statute, even though the statute does have the language [638] . . has failed to pay any support money for a period of one (1) year...”
Prior cases in Indiana which we have examined deal with the situation where the father has made no payment whatsoever within the year immediately prior to the filing of the petition for adoption. Therefore, in the case at bar the question is presented as to whether or not a token payment of some $75.00 during the year immediately prior to the filing of the petition for adoption is sufficient to comply with the terms of the statute thus requiring consent of the natural father.
In the use of the above language can it be said that the legislature meant that nominal support payments would be sufficient? We think not. If such is to be the interpretation, then a natural father could forever block adoption of his children by making a yearly payment of a dollar, and then refuse to give his consent. We hold that the legislative intent must be interpreted in this statute to mean that where the natural father has the ability but fails to substantially comply with any order of support previously entered by a Court or fails to make substantial contributions to the support of his natural children, his consent is not necessary to the granting of an adoption.
This same problem was encountered by the Supreme Court of Louisiana when they were faced with a similar factual situation and a similar statute. That Court stated:
“The basis for requiring the consent of parents to adoption is the natural right of the parent to his child. If a parent does not fulfill his parental responsibilities to his child, there is a reasonable basis for dispensing with his consent. We think the Legislature here was attempting to define conduct which would be a failure of the parent to fulfill his responsibility of support of his child, whereby the parent would forfeit his parental rights.
“In construing the statute here under consideration which dispenses with consent in adoption proceedings under: cer[639] tain conditions, we are mindful of the above pronouncements, but we do not propose to give the statute such a strict interpretation as to make it ineffective and inoperative. To hold that under the statute there must be a complete refusal or failure to pay any sum whatever for one year before consent would be dispensed with would be to disregard completely the obligation which a parent has to provide support and maintenance for his child. Such a holding would permit an unworthy parent, in complete disregard of his obligation to his child, to prevent an adoption which might be to the best interest of the ehild by making a token payment of a nominal sum once each year insufficient to provide for maintenance and support. Such a strict construction would lead to absurd consequences and make the statute meaningless and ineffective.” In re Ackenhausen (1963), 244 La. 730, 739, 154 So.2d 380.
In making this decision we are not condoning the difficulty which the appellant met in attempting to establish visitation with his children. However, in all matters of this nature, the total welfare of the children must be. the paramount consideration, and no natural parent regardless of the difficulties he may be experiencing with his former spouse is justified to unilaterally, without benefit of court order, refuse to pay the amount of support previously ordered by the Court. When he chooses this avenue of redress, regardless of his love and affection for the children, he places himself in a position of removing the necessity of his consent to their adoption. Adoption can then be granted, if it be demonstrated to a Court of probate jurisdiction that the welfare of the children will be best served.
In the case at bar the Trial Court heard the evidence and had the parties before him. This Court will not overturn a decision of the Trial Court under the above circumstances. We will not weigh the evidence. J. I. Case Co. v. Sandefur (1964), 245 Ind. 213, 197 N. E. 2d 519; Woods v. Deckelbaum (1963), 244 Ind. 260, 191 N. E. 2d 101.
We hold that the failure of the appellant to provide support was a fact upon which the Trial Court could base its decision [640] that the consent of appellant was not necessary. We further hold that there is evidence in the record upon which the Trial Court was justified in finding that it was to the best interests of the children that the adoption be granted.
The judgment of the Trial Court is affirmed.
DeBruIer, C. J., Arterburn and Hunter, JJ., concur; Jackson, J., dissents with opinion.