concurring in part and dissenting in part.
I regret that I can concur in the majority opinion only to the extent that it refuses to interfere and modify that portion of the original divorce decree relating to the custody of the minor children.
*792As to that portion of the majority opinion which affirms the award of support monies during the time that the children are visiting with the noncustodial parent, I continue to adhere to the views expressed in my dissent in Koester v. Koester, 99 Idaho 654, 586 P.2d 1370. Those views do not constitute the law of this state and, therefore, do not bear repetition. I only point out that here, as in Koester, the trial judge who had the parties before him found no need for such a provision, but his views were overridden by the district judge on appeal to that court. Here, as in Koester, the noncustodial parent had no child support obligation. Here, the noncustodial parent has remarried and the income of that family, which has no minor children to support, exceeds the income of the custodial parent. The record discloses a complete failure to show any need therefor, but, nevertheless, the district judge modified the order of the trial judge by requiring the custodial parent to pay child support during the periods of time when the children were visiting the noncustodial parent. I would hold the imposition of such requirement to be error.
I turn now to what is, in my opinion, the most disturbing portion of the majority opinion. Without a request from either the appellant or the cross-appellant, this Court overturns the lower court’s orders specifically regulating the visitation rights of the parents of the children. Both the magistrate judge and the district judge on appeal made specific findings of fact spelling out the necessity for the orders. None of those findings are challenged on appeal. The majority opinion glosses the record relating to visitation with the children and compliance with or violation of the court’s orders relating to visitation with bland statements that “there were minor skirmishes between the parties as to the fulfillment of reasonable visitation” and “in the period of time from the divorce and up until the modification hearing, there were some problems, probably not large in the overall course of human relationships.” In my view, such constitutes a clear intrusion by this Court into the fact finding process of the lower courts. Both the trial court and the district court found and concluded that the “continued friction and discord between the parties concerning visitation” was not in the best interest and welfare of the minor children and that the best interest and welfare of the minor children required that the visitation rights be specified. In my opinion, such findings and conclusions of the lower courts are amply supported in the record. Both lower courts pointed out and specified instances of disagreement, friction and discord relating to visitation rights which necessitated prior orders of the court. The district court found “unless the decree is modified to specify the times and places of visitation, there will be continuing controversy between the parties, which controversy will not be in the best interest of the children.” Perhaps the most impelling reason contained in the record for the exercise of discretion by the lower courts in setting specifics of visitation related to the months immediately preceding the hearing in the lower courts. The noncustodial parent had secured possession of the children in California and refused to let the custodial parent even see the children despite the pleas, demands and interposition of the parties’ attorneys. That situation prevailed from June 13, 1975, until the custodial parent saw the children through the window of the courtroom on August 30, 1975. During the lower court hearing the trial court interviewed the children on the record in the presence of counsel but in the absence of the parents. As to one of the children, he found that she was hostile and would not talk in the absence of the maternal grandmother and it was necessary that that person be permitted in the courtroom. The court further found that the child had been programmed as to how she would react to and what she would state to the court. In my view, the record amply supports the findings and orders by those lower courts relating to the exercise of visitation.
This Court, in a long series of decisions, such as Kirkwood v. Kirkwood, 83 Idaho 444, 363 P.2d 1016 (1961); Emerson v. Quinn, 79 Idaho 358, 317 P.2d 344 (1957); Dawson v. Dawson, 90 Idaho 234, 409 P.2d *793434 (1965), has held that where necessary a court is required to define visitation rights in detail and to make and enforce such regulations as may be necessary to secure the observance of the court’s orders. Cf., Thurman v. Thurman, 73 Idaho 122, 245 P.2d 810 (1952), 32 A.L.R.2d 996. In Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970), a district judge sought to apply the remedy which the majority requires the district judge to apply in the instant case. That district judge was reversed by this Court.
As stated in Dey, “the record discloses that the parties were before the court several times and it is not surprising that the district judge rather obviously lost patience with the parties and their lack of ability to agree among themselves as to reasonable visitation rights.’’ For their inability to so agree among themselves, the judge found them in contempt. A unanimous court said in Dey:
We feel it better practice for the court by written order to specifically delineate in detail what are reasonable visitation and custodial rights. We do not approve of the methodology used by the trial court in suggesting that the parties could purge themselves of the contempt order by entering into an agreement among themselves controlling the custodial and visitation rights. While such might appear on the surface to have a very salutary and practical effect in resolving the dispute, obviously in this case it did not.
As hereinabove stated, the jurisdiction of the trial court over child custodial and visitation rights is a continuing one and should be exercised by the court in such detail and specificity of order as may be necessary to carry out the intent of the court. * * * The practice of utilizing a minor child as a shuttlecock to perpetuate a quarrel between former husband and wife is one we cannot too strongly condemn. It is, however, a practice with which district judges can and should deal strongly and forthrightly. Their orders should, when necessary, be clear and concise and they should not be slow in exercising their contempt powers to enforce their orders.
Today, in my opinion, this Court tells the district judges of this state to indulge in a practice which this Court condemned in 1970 in Dey.
In my judgment, the disposition of the matter by the magistrate court should be reinstated in its entirety.