dissenting:
I would grant the petition and declare the voidable divorce decree void in its entirety. In granting the petition, I would further conclude that the district court was not authorized to grant relief under NRS 125A.050, nor was it authorized to make findings under the Hague Convention on the Civil Aspects of International Child Abduction.
It is true that petitioner judicially admitted the facts alleged in the original divorce complaint in support of the real party in interest’s residency, and thus the primary fact in support of subject matter jurisdiction over the marriage and the issues related thereto. The majority now concludes that this admission constitutes a judicial estoppel, which relieves the district court, and therefore this court, from the obligation to declare as void, in its entirety, the admittedly voidable divorce decree. I disagree.
Once the facts of voidability became known, it was incumbent on the district court to void the decree for want of subject matter jurisdiction. As the majority points out, actions of the parties cannot confer subject matter jurisdiction on a court when none otherwise exists. Application of the doctrine of judicial estoppel to these facts would do just that. Since the district court determined that it did have jurisdiction, it is incumbent upon this court to now declare the underlying decree void in its entirety.1
*283The majority’s reliance on our published opinion in Sterling Builders, Inc. v. Fuhrman2 is misplaced. This is because our application of judicial estoppel in Sterling had nothing to do with subject matter jurisdiction. Sterling merely applied the rule of estoppel to prevent a party from denying that a partnership existed in the context of a factual dispute.3 The Sterling decision did not apply the doctrine of judicial estoppel to confer jurisdiction where there was none, and we should not do so now.
The estoppel argument was not sufficient to give any continuing life to the decree. I realize that, under this view, there would be collateral effects on these parties with regard to their post-decree actions and their status as divorced persons. This is particularly unfortunate with regard to petitioner who, at the very least, was a victim of the post-divorce behavior of the real party in interest. This does not, however, alter the fact that the decree was actually voidable in all respects and should be so declared.
No other remedies are available to petitioner under Nevada law. NRS 125A.050, the Nevada version of the UCCJA, cannot provide relief since Nevada is neither the home state of the children of the parties, nor was it their home state at any time. In point of fact, these children have never had any significant connection with the state. It therefore appears that the district court was seriously misled in its deliberations below, given the real party in interest’s statement that the children had lived in Nevada “all their lives.”
The district court also does not have jurisdiction to 'make findings under the Hague Convention on the Civil Aspects of International Child Abduction. This is because actions under the Convention must be made in a “court which has jurisdiction of such action[s] and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”4
See NRCP 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”).
80 Nev. 543, 396 P.2d 850 (1964).
Id. at 549-50, 396 P.2d at 854.
42 U.S.C. § 11603(b) (1995) (emphasis added).
It does appear from the record of this case that these children were wrongfully removed from Norway, that Norway was their habitual residence at the time of their abduction and that, under the Convention, they should be returned to the Norwegian tribunal for the appropriate custody determination. It also appears that the Norwegian court was misled into deferring to the voidable Nevada decree.