— In an action for divorce and ancillary relief, the plaintiff husband appeals from so much of an order of the Supreme Court, Queens County (Beerman, J.), entered February 15, 1984 as, after a hearing, (1) denied those branches of his motion which were (a) to terminate the support provisions of a judgment of divorce, and (b) for counsel fees, and (2) granted that branch of the defendant wife’s cross motion which sought a money judgment for arrears in support payments, and the defendant cross-appeals from so much of the same order as denied that branch of her cross motion which was for counsel fees.
Order modified, on the law, by deleting the provision thereof denying the respective applications of the plaintiff and defendant for counsel fees. As so modified, order affirmed insofar as appealed from, with costs to the defendant, and matter remit*763ted to the Supreme Court, Queens County, for a hearing on the issue of counsel fees.
A stipulation incorporated, but not merged, into the judgment of divorce provided, inter alia, that the plaintiff would continue to pay support to the defendant "until such time as the defendant remarries, dies or lives with another man”. Alleging that the defendant had been living with a man in violation of the agreement, the plaintiff moved for an order terminating his obligation to pay support.
Evidence adduced at a hearing conducted by Special Term revealed that the defendant had been renting the lower two levels of the four-level marital home to a male tenant at the rate of $300 per month. The defendant’s testimony as to the rental arrangement was corroborated by copies of her tax returns on which she had declared as income the rent she received. The tenant moved into the lower levels of the marital home in January 1981 and continued to live there through November 1983. He was a friend of the defendant’s brother and had known the defendant and her family for several years before moving into the premises.
The credible evidence demonstrated that the defendant’s tenant slept in the second-level den while the defendant slept in her fourth-level bedroom. A door separates the second and third levels. Although all doors to the house could be opened by the same key, there were separate entrances to the respective living quarters. There was no evidence that the defendant and her tenant ever slept together or had engaged in sexual relations, nor was there evidence that they socialized together, except on those occasions when they visited the defendant’s brother. They did not have their meals together and did not cook for or purchase food for each other.
Although the evidence revealed that the tenant and the defendant had, at various times, held several joint bank accounts, some of which had been opened prior to his occupancy of part of the marital home, there was no indication of the purpose of these accounts. Most importantly, there was no evidence that either provided financial support to the other.
Although Special Term correctly concluded that it was the plaintiff’s burden to prove that the defendant had violated the terms of the stipulation, it incorrectly held that the burden had to be sustained by clear and convincing evidence (see, Brown v Brown, 122 Misc 2d 849, 850). However, even when the correct preponderance of the evidence standard is applied (see, Smith v Smith, 88 AD2d 658; Spillman v Spillman, 67 *764AD2d 942, affd 49 NY2d 745), the record supports the court’s determination that the plaintiff failed to demonstrate that the defendant had forfeited her right to support under the stipulation by living with another man.
To the contrary, the evidence did not establish that the defendant and her tenant shared household expenses or a bedroom, or that they functioned as an economic unit (see, Scharnweber v Scharnweber, 105 AD2d 1080, affd 65 NY2d 1016). Therefore, that branch of the plaintiffs motion which was to be relieved of his obligation to pay support was correctly denied.
However, the respective applications of the parties for counsel fees should not have been summarily denied without an evidentiary hearing (see, Sadofsky v Sadofsky, 78 AD2d 520). Accordingly, the matter must be remitted for a hearing on this issue. Bracken, Niehoff and Kunzeman, JJ., concur.