concurring.
I concur. I write separately to clarify why I agree that the filing of the motion to modify the child support order prior to the child’s eighteenth birthday invoked the trial court’s jurisdiction.
Prior to her daughter’s eighteenth birthday, Mary Ann Marshall filed a motion to modify the child support order, seeking an increase in child support so as to require Joseph P. Sheldon to pay for one-half of his daughter's medical expenses until the child reached age eighteen. The case did not proceed to trial until twenty-one days after their daughter’s eighteenth birthday. Thus, considerably after the child’s eighteenth birthday, the trial court entered an order modifying child support, requiring Sheldon to pay medical expenses incurred by his child prior to her eighteenth birthday.
The sole issue on appeal is whether the filing of the motion before the daughter’s eighteenth birthday invoked the jurisdiction of the trial court under sections 14.05 and 14.08 of the Texas Family Code. Section 14.05 provides for the support of a child, and at the time of trial provided, in part, “The court may order either or both parents to make periodic payments or a lump sum payment, or both, for the support of the child until he or she is 18 years of age.” TEX.FAM.CODE ANN. § 14.05(a) (Vernon *8571986).1 Section 14.08 sets out the procedure for modification of a child support order: “A court order ... that provides for the support of a child ... may be modified only by the filing of a motion in the court having continuing, exclusive jurisdiction of the suit affecting the parent-child relationship.” TEX.FAM.CODE ANN. § 14.08(a) (Vernon 1986).
Sheldon argues that the trial court lacked jurisdiction to modify the child support award because the court failed to act on Marshall’s modification request until after the child’s eighteenth birthday. He relies in principal part on Red v. Red, 552 S.W.2d 90 (Tex.1977). In Red, the mother sought child support for a disabled twenty-six-year-old daughter under section 14.05(b) of the Family Code. The supreme court noted that a financially able father had an obligation to support an incompetent adult child, and that section 14.05(b) provided for support of an adult disabled child. The court held, however, that:
[T]he clear import of Section 14.05(a) and (b), when read in context with other provisions of all of Title 2 of the Family Code, is that “the court ‘may order that payments for the support of the child shall be continued after the eighteenth birthday’ ” only if the grounds therefore exist and are invoked before the child becomes an adult; i.e., before reaching age 18. A contrary interpretation would defer any possibility of finality or discharge of a judgment of this nature, since the matter could be raised throughout the lifetime of an adult who had once been the subject of child support orders in a divorce judgment.
Red, 552 S.W.2d at 92. I agree with Sheldon that Red is the controlling authority; I cannot agree, however, that the result Sheldon desires is supported by Red.
Red clearly speaks in terms of invoking the court’s jurisdiction prior to the child’s eighteenth birthday. The court in Red did not specifically state that an order of support must be entered prior to the child’s eighteenth birthday. The only requirements that the court set out were that the grounds exist for granting the relief requested and are invoked in the court of original jurisdiction before the child’s eighteenth birthday. See McLendon, 752 S.W.2d at 733.
In the case at bar, Marshall filed the motion setting out grounds for relief prior to the child’s eighteenth birthday. This was sufficient to invoke the trial court’s jurisdiction to hear the motion, even if that hearing would have occurred subsequent to the child’s eighteenth birthday. As our sister court aptly stated:
It would not be just or equitable to deny such relief just because the trial court could not or did not conduct the hearing until after the child’s eighteenth birthday. This, we believe, is in keeping with the legislative intent and the holding by the Supreme Court in Red v. Red.
McLendon, 752 S.W.2d at 733. Thus, I agree with the majority that, in the case at bar, the trial court had jurisdiction to modify the child support order.
. Act of May 24, 1985, ch. 183, § 2(a), 1985 Tex.Gen.Laws 750, amended by Act of August 4, 1987, ch. 73, § 4(a), 1987 Tex.Sess.Law Serv. 461, 462 (Vernon). The 1987 amendment provides that a court may modify a child support order to allow for support of a child enrolled in high school past age eighteen, "whether the request for such an order is filed before or after the child’s 18th birthday." TEX.FAM.CODE ANN. § 14.05(a) (Vernon Supp.1980). Both parties concede that this addition, rendering immaterial the time of filing a motion to modify, was not effective at the time of this trial. See McLendon v. Allen, 752 S.W.2d 731, 732 (Tex.App.—Corpus Christi 1988, no writ).