dissenting:
I disagree with the majority’s conclusion that the decree of divorce is voidable, not void; and I also disagree with the majority that Cisilie is judicially estopped from questioning the decree obtained through Scotlund’s fraud.
*2841. The decree of divorce is void, not voidable
In the majority opinion, my colleagues hold that the decree fraudulently obtained by Scotlund without establishing residency is voidable, not void. This holding is contrary to long-established law in this state and undermines Nevada’s statutory scheme requiring a six-week residency.
For many years, it has been well settled that a divorce decree issued by a district court without jurisdiction is void.1 Here, the majority relies on Smith v. Smith2 where the plaintiff’s good faith failure to properly serve the defendant constituted a procedural irregularity rendering the judgment merely voidable, not void.
Smith is factually distinguishable from the instant case because in that case there was no fraud, merely a procedural irregularity. The plaintiff in Smith established residency for the requisite period in Nevada; the testimony of the resident witness was not flawed. A default had been taken after thirteen days from service of process instead of the requisite twenty days. In contrast, here, Scotlund did not attempt to comply with Nevada law requiring six-week residency. Scotlund had resided in Nevada only five days when he signed the complaint. Thus, this case does not involve a mere procedural irregularity as in Smith. The majority’s reliance on Smith is misplaced because here the district court clearly lacked jurisdiction and the decree of divorce was void.3
Additionally, the majority relies on Moore v. Moored.4 In Moore, the husband obtained a decree of divorce after he had physically resided in Nevada for more than six weeks.5 Later, the husband and wife sought to void the decree saying that although the husband had been physically present in Nevada and contrary to his testimony in court, he really had not intended to make Nevada his residence.6 To determine whether the decree of divorce was void or voidable, we reviewed the “manner in which the trial court had exercised its authority to resolve the factual problem confronting it [the issue of residency].”7 Specifically, we noted that a decree *285is void when there is “ ‘a total defect of evidence to prove the essential fact, and the court find[s] it without proof.’ ”8 Under such circumstances, “ ‘the court acts without authority, and the action of the court is void.’ ”9 In Moore, the husband’s testimony that he had been a bona fide resident in Nevada for more than six weeks was sufficient to make the decree of divorce merely voidable.10
In contrast, the facts before this court indicate that there was a total defect of evidence proving that Scotlund was a resident of Nevada. Three facts are significant. First, the majority admits that Scotlund’s statement concerning residency in the verified complaint was false. In fact, when the complaint was signed, Scotlund had been in the state for a period of only five days. Second, the affidavit of the resident witness did not corroborate Scotlund’s claim of residency by “clear and convincing evidence” as required by law.11 The affidavit was cleverly worded to indicate that the affiant had known Scotlund for “six weeks” — but not during the six weeks he was claiming residency in Nevada. The affiant further stated that she had seen Scotlund physically present in Nevada “on an average of 3-4 times weekly.” It was signed when Scotlund had been in Nevada only six days, not for a period of six weeks. Third, the district court entered the decree in chambers without a hearing. At the time the decree was signed, Scotlund was thousands of miles away in England. It is abundantly clear that Scotlund had not established a residence in Nevada at the time the complaint was filed sufficient to confer jurisdiction upon the district court to grant a divorce.
Unlike Moore, there was a total defect in the evidence presented to the district court. Hence, based on the lack of residency, the decree of divorce is void, not merely voidable.
Adopting the majority’s view would undermine Nevada’s statutory scheme requiring a six-week residency. A non-resident plaintiff seeking an expedient divorce could travel to Nevada, file a complaint the same day, and obtain a decree of divorce immediately. The problem with holding that such a decree is voidable, as we are urged to do in the majority opinion, is that individuals could commit fraud upon our courts and reap the dubious benefits of a voidable divorce decree, which is what Scotlund is doing here.
*2862. Judicial estoppel
Scotlund attempts to breathe life into a void decree by alleging that Cisilie is judicially estopped to question the validity of the void decree. If we hold the decree of divorce to be void, we need not reach the question of whether Cisilie is judicially estopped. However, since the majority reached this question, I feel obliged to convey my concerns about the application of judicial estoppel under the circumstances before this court.
The United States Supreme Court has stated that judicial estoppel is designed to “ ‘protect the integrity of the judicial process’ ”12 in order to “ ‘prohibit[ ] parties from deliberately changing positions according to the exigencies of the moment.’ ”13 It follows that the doctrine of judicial estoppel is an equitable doctrine applied by a court at its discretion.14
In this case, I submit the district court erred by finding that Cisilie was not coerced or operating under duress when she signed the answer (prepared by Scotlund’s Nevada divorce attorney) admitting to Scotlund’s claim of residency.15 The record shows that Scotlund had threatened Cisilie that he would take the couple’s children away from her if she did not cooperate with the divorce.16 It was a threat that was later carried out when Scotlund kidnapped the children in Norway by trickery and deceit and flew to the United States. The district court abused its discretion by invoking the doctrine of judicial estoppel against Cisilie.
Moreover, a court has discretion not to apply judicial estoppel when “ ‘a party’s prior position was based on inadvertence or mistake.’ ”17 In this case, Cisilie is not judicially estopped because there is no evidence to suggest that she was aware of Nevada’s residency requirement. In fact, she had never resided in Nevada. The answer that she signed was prepared by her husband’s attorney in Nevada and sent by airmail to her in Norway for immediate signature. She had planned on remarriage; but when an attorney in Norway advised her that there might be some doubt as to the *287validity of the Nevada decree, Cisilie cancelled the marriage ceremony. She has spent thousands of dollars in fees and travel expenses in an effort to set aside the admittedly fraudulent decree and will presumably have to spend thousands of additional dollars to regain custody of her children illegally taken from her in Norway by Scotlund. Thus, the district court incorrectly applied the doctrine of judicial estoppel because Cisilie’s admission to Scotlund’s claim of residency was not knowingly made and certainly not a representation that Scotlund could rely on to prove his residency under Nevada law or prevent her from questioning the residency requirement.
Finally, we have stated that the “ ‘purpose of the doctrine of judicial estoppel is to suppress fraud . . . and to eliminate the prejudice that would result to the administration of justice if a litigant were to swear one way one time and a different way another time.’ ”18 In this case, invoking judicial estoppel against Cisilie protects Scotlund from the consequences of his fraud upon the district court and inhibits the administration of justice. Scotlund was the sole architect of the scheme to perpetrate fraud on the district court. He should not be allowed to harvest the benefits of such fraud. Our court should not close the doors of justice to the innocent and reward the wrongdoer in the name of judicial estoppel.
3. Digression (the state of our legal system)
I am disturbed about the conduct of Scotlund’s divorce attorney in this case. The attorney prepared a complaint that falsely alleged Scotlund’s residency in Nevada. The divorce attorney knew or should have known that Scotlund had not been a resident of Nevada for six weeks when he signed the complaint.19 Further, the affidavit signed by the resident witness was cleverly drafted by the divorce attorney in a misleading manner in an effort to corroborate residency.
CONCLUSION
I strongly disagree with the conclusion of the majority that the decree of divorce was merely voidable, not void. The decree of divorce is void because the district court lacked jurisdiction to grant a divorce. To hold the decree voidable will lead to absurd results and undermines Nevada’s statutory scheme requiring resi*288dency of at least six weeks. Moreover, in my opinion, the court need not reach the question of judicial estoppel because the decree is void. Nonetheless, I strongly disagree with the conclusion that Cisilie is somehow judicially estopped. She was the victim, not the wrongdoer. Finally, the district court lacked subject matter jurisdiction to make findings under the Hague Convention. Scotlund lied to the district court, during the custody hearing, when he testified that the children had lived in Nevada “all their lives.” The fact is that the children had never resided in Nevada and apparently after being kidnapped in Norway were flown to Texas where presumably they now live.20
Milton v. Gesler, 107 Nev. 767, 771, 819 P.2d 245, 248 (1991) (holding that because the district court acted without jurisdiction, the decree of divorce is void); La Potin v. La Potin, 75 Nev 264, 266, 339 P.2d 123, 123-24 (1959) (same); Perry v. District Court, 42 Nev 284, 288, 174 P. 1058, 1059 (1918) (same).
82 Nev. 384, 419 P.2d 295 (1966).
See Milton, 107 Nev at 771, 819 P.2d at 248; La Potin, 75 Nev at 266, 339 P.2d at 123-24; Perry, 42 Nev. at 288, 174 P. at 1059.
75 Nev. 189, 336 P.2d 1073 (1959).
Id. at 192, 336 P.2d at 1074.
Id. at 190-92, 336 P.2d at 1073-74.
Id. at 193, 336 P.2d at 1075.
Id. (quoting Lamp Chimney Co. v. Brass & Copper Co., 91 U.S. 656, 659-60 (1875)).
Id. (quoting Lamp Chimney, 91 U.S. at 660).
Id. at 192-93, 336 P.2d at 1074-75.
McKim v. District Court, 33 Nev. 44, 52, 110 P. 4, 5 (1910).
New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982)).
Id. at 750 (quoting U.S. v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)).
Id.
When Cisilie received the answer, she was unknowingly recruited by Scotlund to participate in the perpetration of fraud upon the district court. I see no evidence to the contrary.
Cisilie could reasonably believe that Scotlund would carry out his threats and that she would never see her children again based on Scotlund’s family history. Cisilie was aware that Scotlund’s mother had kidnapped him and his siblings to another state, changed their last name, and the father kidnapped them back.
New Hampshire, 532 U.S. at 753 (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir. 1995)).
Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 550, 396 P.2d 850, 854 (1964) (quoting 31 C.J.S. Estoppel § 121, at 649, 650).
The record indicates that the divorce attorney and Scotlund were communicating about the divorce case when Scotlund was living in England, just days before he flew to Las Vegas.
I would refer this matter to the State Bar of Nevada for investigation of the conduct of Scotlund’s divorce lawyer. See NCJC Canon 3D(2) (imposing upon a judge an affirmative obligation to take appropriate action upon receiving information indicating substantial likelihood that a lawyer has committed a violation of the Nevada Rules of Professional Conduct). Furthermore, I am disturbed with Scotlund’s behavior. Accordingly, I would refer this matter to the Clark County District Attorney’s Office for investigation. The clerk of this court shall provide a copy of this opinion and dissent to the State Bar of Nevada and to the Clark County District Attorney’s Office.