John B. and Ann Carroll B., formerly Ann N., petitioned district court for adoption of Michelle N., Mrs. B.’s daughter by a previous marriage. As part of their petition, the Bs, asked for an order that the adoption proceed without consent of the natural father, Kenneth P. N., because N. willfully failed to pay child support according to terms of the decree in Ns.’ divorce, and that willful failure had continued for one year.
The petition for adoption and application for order that the child be considered eligible for adoption without consent were filed August 20, 1975. Kenneth P. N., appellant herein, appeared and contested the petition and application. After considering evidence concerning N.’s failure to pay child support during the period beginning August 20, 1974, trial court held failure to pay was willful. N. then perfected his appeal to this Court. Appellees are the Bs.
The sole issue raised on appeal is error in trial court’s ruling the child eligible for adoption without consent of her natural father, appellant, by reason of his willful failure, for a period of one year, to pay child support in accordance with a valid decree of divorce. See 10 O.S.Supp.1975 § 60.6.
The question of willful failure to support is a fact question. On review of matters concerning eligibility for adoption without consent, we will not disturb trial court’s ruling unless the ruling is clearly against the weight of the evidence. DeGolyer v. Chesney, Okl., 527 P.2d 844.
At trial parties agreed on certain matters of fact: N. and Mrs. B. had once been married to each other; Michelle was born of that union; a valid divorce was granted by the State of North Carolina in July 1973. The divorce decree awarded custody of Michelle to Mrs. B. and required N. to make regular monthly payments of child support. Payments were properly made until April 1974. N. failed to make payments after April 1974. No payments of child support had been made for more than one year next preceding filing of petition for adoption in district court.
The gravamen of this appeal is whether failure to pay child support was willful. Evidence shows N. was imprisoned in North Carolina on state charges of possession and delivery of marijuana and conspiracy to import marijuana into the state. He was in prison from April 1974 to January 1975. In February 1975, N. visited Mrs. B. at her home and, upon being denied visitation with the child, refused to pay over any of the child support money he had with him.
The Bs., and Michelle, relocated in North Carolina in February 1975, and moved to Oklahoma at the end of March 1975. The evidence of N. was to the effect that he was unaware of Bs.’ whereabouts from April 1975 until sometime in July 1975. However, N.’s Oklahoma counsel contacted Bs. about visitation on July 30, 1975.
No payments of child support were made from April through July 1975, and none were made during the period before filing of petition below and after the time N. knew Bs.’ whereabouts.
N. testified while imprisoned he was paid $308 per month, as his salary from employment on a work release type program. He was so employed throughout the period material to our consideration. He received, for his own use, about $40 per month; $100 per month was sent to his current wife; $118 per month was paid for room and board at the prison and the balance went into a sort of institutional savings program for N.’s eventual benefit. He did not testi*70fy to any effort on his part to have this savings account applied toward the child support obligation. He did not indicate he contributed any portion of the $40 spending money for child support.
N. testified he arranged with his mother to make child support payments during his period of incarceration. Evidence showed she was to have advanced the necessary funds. The testimony of N.’s mother, although internally inconsistent, could be interpreted by the trial court as confirming N.’s testimony. While N. was in prison his mother made several telephone calls to Mrs. B., and wrote her several letters, promising to pay child support. No payments were forthcoming. Evidence offered by N.’s mother indicates Mrs. B. would not engage in telephone conversation or answer her letters. That is apparently the sole basis for the contention, in the trial court, that Mrs. B. refused child support payments.
We are not concerned here with a prisoner who had neither the opportunity nor the means to support. Even though he could have made some payments the facts show N. failed to contribute any support for the child. Upon release from prison N. continued to refuse to pay support of any kind, even while he had the money in his pocket. We cannot say N. did other than ratify his previous failure to pay child support.
N. took no legal action to modify support; nor did he seek to enforce visitation. Rather, he chose to ignore the decree of the North Carolina court. We will not condone failure to support as a legitimate self-help remedy for denial of visitation. In this state of facts we cannot say N. was financially or otherwise unable to pay child support during his period of incarceration or afterwards. Compare In re Adoption of Eddy, Okl., 487 P.2d 1362.
N.’s attitude toward support may be explained by reference to his meeting with Mrs. B. in February 1975. As mentioned, on that occasion N. was seeking visitation with the child. Mrs. B. refused visitation, citing N.’s failure to support as her reason. Rather than pay over the money he then had on him, and which he testified was intended for payment, and rather than take any legal action to enforce visitation or readjudicate support, N. simply did nothing. He continued to do nothing until after Bs. moved to Oklahoma.
On July 30, 1975, N.’s Oklahoma counsel wrote to Bs. attempting to settle the visitation matter. Neither then nor at any time thereafter until petition for adoption was filed was there any tender of current child support or any part of the arrearage in child support.
Trial court heard the testimony and had the opportunity to observe the witnesses, their bearing and demeanor. Based upon the record, as reflected in the above recitation, we cannot say trial court’s decision was contrary to the weight of the evidence.
Affirmed.
LAVENDER, V. C. J., and IRWIN, BARNES and DOOLIN, JJ., concur. HODGES, C. J., and WILLIAMS and SIMMS, JJ., dissent.