dissenting.
The trial court ruled that the minor child had been "... wilfully and wantonly abandoned by his natural father. ..” although the court’s only finding of abandonment based on the evidence was that the father has not supported his child since January 27, 1975.
The law in effect at the time this petition was filed was Ga. L. 1941, pp. 300, 301; 1950, pp. 289, 290; 1957, p. 367; 1960, pp. 791, 792; 1967, pp. 107, 108 (former Code Ann. § 74-403). "It is the law and policy of this state that no adoption shall be permitted without the written consent of the child’s living parents, except under special circumstances. Code Ann. § 74-403; Stubbs, Georgia Law of Children, § 27. Two such circumstances are the abandonment of the child by the parent and the wanton and wilful failure of the parent to comply with a support order for a period of twelve months. Code Ann. § 74-403 (2).” Nix v. Sanders, 136 Ga. App. 859 (223 SE2d 21) (1975). In the present case, the trial court has not ruled *12that there was a wanton and wilful failure of the parent to comply with a support order for a period of 12 months, as provided by the Code; instead, it heldthatthe child has not been supported by his father since January 27,1975, and, therefore, the father has wilfully and wantonly abandoned him.
"While the superior court has a very broad discretion in matters of adoption, which discretion will not be controlled by the appellate courts except in plain cases of abuse, such discretion is a legal one; and where the authority of the court to proceed with the adoption is dependent on the existence of consent by the living parent or parents or on a showing of the abandonment of the child by such parent or parents, the evidence of consent or of abandonment must be legally sufficient to authorize a finding of fact by the court that the consent has been given or that the parent has abandoned the child. Under the foregoing rules of law, the burden in this case was on the adopting parents to show a legal abandonment of the [child] by the father since no consent was attached to the petition.” Johnson v. Strickland, 88 Ga. App. 281, 283 (76 SE2d 533) (1953). "While the penal statute as to abandonment of a child by the father. . . may be considered, it is not the criterion here. The adoption statute, so far as it embraced the subject of abandonment, was enacted before the penal statute, and was not qualified thereby. While it may be true that in some respects the statute as to adoption may be liberally construed, ... it must be construed strictly against the applicant and favorably to the parent.” Glendinning v. McComas, 188 Ga. 345, 346 (3 SE2d 562) (1939); Johnson v. Strickland, supra, at 284. "There must be sufficient evidence of an actual desertion, accompanied by an intention to sever entirely, so far as possible to do so, the parental relation, throw off all obligations growing out of the same, and forego all parental duties and claims.” Wheeler v. Little, 113 Ga. App. 106, 109 (147 SE2d 352) (1966). Mere failure of a parent to provide support for a minor child has been held not to constitute an abandonment as will amount to a relinquishment of parental custody and control. Rawdin v. Conner, 211 Ga. 52 (84 SE2d 50) (1954); McComas v. Glendinning, 59 Ga. *13App. 234 (200 SE 304) (1938) affd. 188 Ga. 345, supra.
Recent decisions support my contention that failure to pay support without other evidence of abandonment is not sufficient to authorize the trial court to grant an adoption without the consent of the natural father. In Milford v. Maxwell, 140 Ga. App. 85 (230 SE2d 93) (1976), this court held that evidence that the father had not seen his children since 1971 even though he and the children lived in adjoining counties and his admission that he failed to make support payments as required by the divorce decree was sufficient to show abandonment by the father and to authorize termination of his parental rights under Glendinning v. McComas, supra. More recently, in Peacock v. Cox, 143 Ga. App. 762, 763 (240 SE2d 97) (1977), this court held that a finding of fact by the trial judge that a father " '. . . has shown an intent to entirely sever so far as possible to do so, the parental relation with said minor child and to throw off all obligations growing out of the same,’ ” was sufficient to find an abandonment under the rule set forth in Glendinning v. McComas, supra, to permit adoption without the parent’s consent. (Emphasis supplied.) Thus, this court still adheres to the rule enunciated in Glendinning that nonpayment of support alone is not sufficient to find that the parent has abandoned the child.
In this case, the only evidence of abandonment was that the father had not sent the child’s mother the amount of support owing under the divorce decree. Although there was evidence to show that the father had been injured while working and that he had not returned to work at the time of the hearing on appellee’s petition, the trial judge made no finding of the father’s ability to support his son. A copy of the divorce decree does not appear to have been introduced in evidence, and there was no evidence as to whether or not appellant attempted to maintain contact with his son or whether he ever exercised any visitation rights that he may have had under the decree. I do not believe that appellee has met his burden of proving that appellant’s acts were sufficient to constitute an abandonment of the child as required under Johnson v. Strickland, supra. Therefore, as the evidence did not authorize the trial court’s finding of a wilful and wanton *14abandonment, I must respectfully dissent.
I am authorized to state that Judge McMurray joins in this dissent.