DOC officials have a nondiscretionary duty to take custody of state-sentenced prisoners. See People v. Lockhart, 699 P.2d 1332, 1336 (Colo. 1985). Where necessary, mandamus relief is available to compel the performance of a nondiscretionary ministerial duty. Hall v. City County of Denver, 117 Colo. 508, 512, 190 P.2d 122, 125 (1948).
Remedial sanctions for contempt must be supported by findings of fact establishing the contemnor (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order. Nussbeck II, 974 P.2d at 498; People v. Lockhart, 699 P.2d 1332, 1336 (Colo. 1985); In re Marriage of Zebedee, 778 P.2d 694, 697 (Colo.App. 1988). When the court imposes a remedial contempt sanction, it must do so "in writing or on the record describing the means by which the person may purge the contempt."
Robinson alleged that the probate court abused its discretion when it imprisoned her. Robinson argued that she was not advised of her rights, was not appointed counsel, and no sworn testimony was taken on the matter. In addition, Robinson asserted that the probate court erred when it imprisoned her on contempt grounds because she had no present ability to comply with the court's order to purge herself of the assets from the estate, citing to People v. Lockhart, 699 P.2d 1332, 1336-37 (Colo. 1985). On August 31, 1999, this court issued an order and rule to show cause pursuant to C.A.R. 21, granting Robinson's request to stay execution and request for her immediate release and directing the probate court and Phillip G. Elliot to answer in writing why the relief requested should not be granted.
This court has held that "`for the limited purpose of taking custody of prisoners as directed by the mittimus'," DOC officials are "`officers of the court'." Pena, 911 P.2d at 56 (quoting People v. Lockhart, 699 P.2d 1332, 1336 (Colo. 1985). When a prisoner's sentence has been served, or when a sentence has been declared completed by a final and effective court ruling, the DOC must obey a judicial order for discharge that is not subject to appeal. While this court has acknowledged that a trial court may lack the authority to "supervise" an executive agency, we have also noted that where an executive officer fails to comply with a final order of a trial court, such court "may take appropriate steps to enforce its order."
Absent evidence showing that the contemnor willfully disobeyed a specific and definite order of the court, contempt is not established. People v. Lockhart, 699 P.2d 1332 (Colo. 1985); United States v. Rylander, 714 F.2d 996 (9th Cir. 1983), cert. denied, 467 U.S. 1209 (1984); United States v. Powers, 629 F.2d 619 (9th Cir. 1980). [24] JUSTICE ROVIRA concurs in the result only.
1986), an original proceeding filed by the People, the executive director of the department of institutions, and the superintendent of the Colorado State Hospital, we held that the district court exceeded its authority when, in the course of the competency phase of a criminal case, it issued the following orders to the executive director and the superintendent: to pay a private psychologist for treatment given to the defendant committed to the state hospital on the basis of his incompetency to stand trial; to permit continued treatment of the defendant by the private psychologist; and to make requests in current and future budgets for funding of such expenses. In People v. Lockhart, 699 P.2d 1332 (Colo. 1985), which was on appeal by the county commissioners and the county sheriff from the district court's dismissal of a contempt citation issued at the request of county officials, who were permitted to intervene in the criminal case for the purpose of petitioning the district court to issue a contempt citation to officials of the department of corrections for their refusal to receive sentenced offenders at the diagnostic center in Canon City, we affirmed the judgment of dismissal on the basis of the district court's evidentiary findings relating to the impossibility of compliance by the department. In neither Carlson nor Lockhart, however, was the issue of intervention raised before us, and we did not address that question.
Nor could the order be enforced against the parties because neither parent can force an eighteen-year-old to comply with the dissolution court’s parenting time provisions. See People v. Lockhart , 699 P.2d 1332, 1336 (Colo. 1985) (party may not be held in contempt for refusing to do that which he is unable to do); cf. In re Marriage of Jensen , 114 Cal.App.4th 587, 7 Cal.Rptr.3d 701, 706 (2003) ("[T]he court may neither order a party to a dissolution action to assert control over an adult child, nor hold the party responsible for any reluctance or refusal of an adult child to visit ... with the other party.").
In order to be held in contempt for this reason, however, a party must have refused to do exactly what the court order required. People v. Lockhart, 699 P.2d 1332, 1336 (Colo. 1985). "A party may not be held in contempt for refusal to do that which he is unable to do or that which the court has not ordered him to do."
The Judgment and Sentence only requires the sheriff to deliver the defendant to LARC and leave him there for imprisonment as set out in 57 O.S.Supp. 1996 § 530[ 57-530]. Petitioner compares his case to People v. Lockhart, 699 P.2d 1332 (Colo. 1985), where Department of Corrections officials refused to accept prisoners in accordance with mittimus orders which contained the following language: THEREFORE, IT IS ORDERED that the Sheriff of Jefferson County shall safely convey the Defendant to the Colorado State Department of Corrections Diagnostic Unit at Canon City, Colorado, to be received and kept as provided by law.
Because the question of subject matter jurisdiction may be noticed at any stage of the proceeding, including appeal, we address this issue. See People v. Lockhart, 699 P.2d 1332 (Colo. 1985). We conclude that the district court acted within its jurisdiction in determining that the attorney fees were not dischargeable.